Language, Democracy, and the Paradox of Constituent Power: Declarations of Independence in Comparative Perspective 9781138606869, 9781138606876, 9780429467479

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“This is a careful and important study of the language of founding moments in modern political thought and four specific cases. It is not a study of the violence, dispossession, genocide, ecocide, racism, displacement and colonization that founding moments enact and try to conceal. Rather, it is a critical investigation of the dense labyrinth of paradoxical claims and counter-claims that the captivating language of founding generates and to which we remain captive, often without realizing it. Frost shows us how to be more self-aware of the paradoxes, disinclined to take their illusions for either truth or reconciliation, and, thereby, able to think critically.” James Tully, Professor Emeritus, University of Victoria, Canada “Frost’s book is a welcome and important intervention in contemporary debates about constituent power. It provides a novel way of thinking about the concept, while at the same time shedding light on its – until now largely unexplored – relationship to declarations of independence. It is a work that political and constitutional theorists, as well as contemporary constitutional lawyers, interested in founding moments will now have to take into account.” Joel Colón-Ríos, Faculty of Law, Victoria University of Wellington, New Zealand “Frost’s innovative approach to the problem of naming the subject of constituent power combines a deft treatment of the thorny problems of sovereignty of representation as they reveal themselves in declarations of independence with clever readings of contemporary moments of collective expression, from the 1916 Proclamation of the Irish Republic to the prospect of declaring an independent Scotland. A book that will certainly be of interest to political theorists and legal scholars alike.” Sarah Drews Lucas, Lecturer in Political Theory, Exeter University, UK “This is a remarkable book. Amidst an ever-growing number of contributions to the subject, Catherine Frost offers a radically new way of looking at the problem of constituent power which will be of interest to the students of constitution-making across disciplinary confines, and which deserves to be read by anyone interested in the role of the people in radical political transformations in general.” Zoran Oklopcic, Carleton University, Canada

LANGUAGE, DEMOCRACY, AND THE PARADOX OF CONSTITUENT POWER

In this book, Catherine Frost uses evidence and case studies to offer a re-examination of declarations of independence and the language that comprises such documents. Considered as a quintessential form of founding speech in the modern era, declarations of independence are, however, poorly understood as a form of expression, and no one can completely account for how they work. Beginning with the founding speech in the American Declaration, Frost uses insights drawn from unexpected or unlikely forms of founding in cases like Ireland and Canada to reconsider the role of time and loss in how such speech is framed. She brings the discussion up to date by looking at recent debates in Scotland, where an undeclared declaration of independence overshadows contemporary politics. Drawing on the work of Hannah Arendt and using a contextualist, comparative theory method, Frost demonstrates that the capacity for renewal through speech arises in aspects of language that operate beyond conventional performativity. Language, Democracy, and the Paradox of Constituent Power is an excellent resource for researchers and students of political theory, democratic theory, law, constitutionalism, and political history. Catherine Frost is Associate Professor of Political Science at McMaster University, Canada. Her teaching and research interests are in political thought and history, including political community, nationalism, and collective identity, as well as communications theory, literature, and new media. Her research centers on questions of representation and justice and asks how and why systems of representation are created and recreated and how this reshapes politics. Before joining McMaster, Frost held research fellowships at the Hebrew University in Jerusalem, Israel, and McGill University in Montreal, Canada, and before entering academia, she served as a policy advisor in the Ontario government and a communications advisor in the private sector.

LANGUAGE, DEMOCRACY, AND THE PARADOX OF CONSTITUENT POWER Declarations of Independence in Comparative Perspective

Catherine Frost

First published 2021 by Routledge 52 Vanderbilt Avenue, New York, NY 10017 and by Routledge 2 Park Square, Milton Park,Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 Taylor & Francis The right of Catherine Frost to be identifed as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identifcation and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data A catalog record for this title has been requested ISBN: 978-1-138-60686-9 (hbk) ISBN: 978-1-138-60687-6 (pbk) ISBN: 978-0-429-46747-9 (ebk) Typeset in Bembo by Deanta Global Publishing Services, Chennai, India

For Steven A man of few words

CONTENTS

Acknowledgments 1 The Speaking Sovereign

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2 Declarations of Independence as Proto-legal Performatives

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3 America’s Declaration of Independence as Index Case

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4 Poetic Prophecy in Ireland’s 1916 Proclamation of the Republic

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5 Canada’s Secession Reference and the Trickiness of Sovereign Speech

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6 Scotland’s Festival of Democracy

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7 Paradox, Riddles, and the Saturnalia of Language

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Conclusion: Moving in the Gap Index

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ACKNOWLEDGMENTS

This book was fnished during a pandemic. A pandemic, as I discovered, is an exercise in thinking the unthinkable. I would like to say a special thanks to everyone who made it possible to continue research during this extraordinary time, especially the staff of Mills Library at McMaster, who worked miracles at obtaining sources under diffcult conditions.The editorial team at Routledge was also unfailingly prompt and helpful from start to fnish, including Natalja Mortensen, who shepherded the project through its early development, and Charlie Baker, who answered endless emails with patience and goodwill as I fnalized the work. I also extend my gratitude to the anonymous reviewers for the press for their thoughtful engagement. I’m fortunate to work in a theory-friendly department in the Political Science Department of McMaster University, but I am especially fortunate to have theory colleagues like James Ingram and Inder Marwah, who have heard various iterations of this project throughout its development. I always beneft from their ideas. I’d also like to thank Elke Winter for thoughtful discussions on Canadian identity and citizenship law over the years, which laid the groundwork for the ideas developed here. And I would like to add a special note of thanks to James Tully for his generous comments on an earlier version of Chapter 5. They provided inspiration to tackle the issue anew.Thanks also to Lana Wylie, Karen Bird, Netina Tan, Marshall Beier, Peter Nyers, and my colleagues at McMaster in the Political Science Department and beyond. It’s a pleasure to work alongside you. I’m especially indebted to Peter Graefe, who read and shared thoughts on an early version of Chapter 5. And extra thanks must go to Stephen McBride, who is not only a colleague at McMaster but also my former teacher, so I am doubly fortunate in that connection.

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I get a tremendous amount out of teaching the amazing people that come through the doors of McMaster. I’d especially like to thank the students that have taken my “Origins of Law” seminar and hashed out the complexities of law as theory together. It’s a joy to see new people tackle the demanding theory around constituent power, and their discussions are wonderful to watch. If spirited engagement with constitutional questions is the saving grace of political order, I’m happy to report that Canada’s future is in good hands. Elements of this project also benefted from the research assistance of Rebekah Pullen, whose work on Vattel and international norms opened up new lines of inquiry, and Dina Hansen, whose passion for Indigenous issues matches her care for responsible research. During the development of this project, I was also fortunate to be involved with an innovative project led by Chris Sinding (from Social Work) and Catherine Graham (from the School of the Arts) at McMaster. The “Transforming Stories, Driving Change” project grew out of earlier work, looking at arts-informed social science, and to my mind, is a model of how community-engaged research should be done. It developed actual live performances – theatrical works written and performed in cooperation with individuals facing social exclusion, whose voices often struggle to be heard. I presented embryonic thoughts on this project to a workshop as part of this initiative, and I benefted from the thoughtful feedback, as well as from seeing theory put into action through the project’s subsequent iterations. Thank you to the researchers, the community research partners, and especially to the performers for their efforts. Papers related to this project were presented before audiences at the Canadian Political Science Association, the Association for Political Theory, and the Association for Canadian Studies in the United States. I am grateful to the audiences in each case. I also presented material related to this topic at the “Images of Sovereignty” conference held at KU Leuven, and my thanks to the organizers for that opportunity. I am also indebted to the Centre for Canadian Studies at University College Dublin for an invitation to present elements of this work to an Irish audience. And to John McGuire, convenor for the “Deep Structures of Democracy” conference organized with University College Dublin, where part of this project was scheduled to be presented before a global pandemic intervened, I am looking forward to resuming the discussion once conditions permit. Early stages of this project benefted from the guidance of Andreas Kalyvas, editor at Constellations, where one of the chapters in the book frst took life. I am especially grateful to the anonymous reviewers for the journal, whose penetrating questions have resonated in my head throughout this project and helped push me to develop it further. My article “Summoning Sovereignty: Constituent Power and Poetic Prophecy in Ireland’s 1916 Proclamation of the Republic” appeared in Constellations volume 24 issue 1 in 2017.That article forms part of the discussion of Irish founding in Chapter 4 and is reprinted here with the permission of the publisher.

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Acknowledgments

Thanks also go to the editors and reviewers at the journal Mortality, which provided a venue to explore aspects of Arendtian thinking around loss and selfsacrifce. My article “Birth, Death and Survival: Sources of Political Renewal in the Work of Hannah Arendt and Virgil’s Aeneid” appeared in Mortality volume 23 issue 4 in 2018 and passages appear in Chapter 4, with the permission of the publisher. David McGrane and Neil Hibbert kindly included a chapter on Arendt and Canadian constitutionalism in their edited collection on Canadian political theory.That chapter, entitled “Does Canada Have a Founding Moment?” appeared in Applied Political Theory and Canadian Politics, edited by David McGrane and Neil Hibbert and copyright University of Toronto Press, 2019. Passages from that earlier work form part of the discussion in Chapter 5 on Canadian founding issues. They are reprinted with the permission of the publisher. Finally, a short passage from Alasdair Gray referenced in Chapter 6 is © Copyright Alasdair Gray, 1983. Extracts from Gray’s Unlikely Stories, Mostly are reproduced with permission of Canongate Books Ltd. This research was made possible by an Insight Grant from the Social Science and Humanities Research Council of Canada, as well as by an Explore Grant awarded through the McMaster University Arts Research Board and funded by the Social Science and Humanities Research Council of Canada. I am grateful to both organizations for the support. Finally, I would like to offer my deepest thanks to my family, Mary, Brian, Bob, Johanne, Robin, Sean, Nick, and Jen, for moral support throughout this project in the form of endless laughter, debate, all-you-can-eat sushi, and cups of tea.Thanks also to my friends Sharon and Megan, for reminding me to shut the laptop occasionally and play.And to Toby for being just what I needed, whenever I needed it.

1 THE SPEAKING SOVEREIGN

The modern idea of democracy says the political order should refect the “voice of the people” and assure this capacity via law. But what happens when people demand changes that threaten to overturn the political order itself? If a political system provides the medium through which democratic preferences are transmitted, then pulling down an existing order amounts to demolishing the structure that makes collective voice discernible. Politics would then be like shouting in a vacuum; no matter how many were shouting, it would be equally ineffective.Yet the voice of the people is precisely the element counted on to fll the vacuum and restore the mediating function of politics. So how does the vox populi dictate its own transfguration? This impasse forms the paradox of constituent power – the collective power of the people precedes representative politics yet remains inarticulate without it. Politics cannot be legitimate without the voice of the people, but as soon as it is mediated into existence, legitimacy issues ensue. While it seems like a formula for paralysis, from a historical point of view the dynamic looks quite different. Modern states and regimes regularly use an announcement or communiqué to mark their arrival in the political world, and most look back on key authorizing moments. Despite its paradoxical qualities, a declaration of independence has become the default hallmark of newfound sovereignty in the modern era (Armitage 2007). A properly authorized declaration – meaning one that is accepted by its own populace and the wider international order – therefore looks like the answer to the question of renewing the political order in speech. But there are at least two problems with this solution.The frst is that declarations of independence are not generally considered constitutional documents. Assuming a constitution represents the core of a political order, then writing one should probably be considered the real founding moment. Indeed the famous

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“We the People” expression often associated with constituent power appears not in the American Declaration but in its constitution, written a decade later. The Declaration in fact begins with a reference to time, reading:“When in the affairs of man.” A declaration of independence might mark the end of the old system then, signaling a time for change, but the real action is still pending. Is it fair to regard such a document as a pivotal expression of constituent power? The declaration of independence has an ambiguous relationship to constitutionalism in part because law, by its very structure, externalizes the question of beginnings, either by excluding it entirely or by assigning it to an exogenous force. So while constitutions struggle to account for their own origins, declarations of independence have, at best, incomplete legal qualities. This leads to the second reason that declarations of independence are a deceptively simple answer to a deceptively simple question.They are generally taken to be a kind of performative utterance, yet performatives play upon prevailing structures of power for their operation, making them an awkward ft for an operation conducted in the absence of such authority. Since performatives cannot provide instantaneous authorization and since they may actually signify the absence of a constituting subject, they are linguistically and politically unsuited to the conditions that founding involves. Founding speech, in contrast, is generally thought of as originating outside of prevailing structures of power, provides a source of immediate authority, and signals the presence of an especially signifcant subject. So what explains the readiness to accept declarations of independence as a perverse form of performative – one that apparently works by not working at all? More to the point, if they have questionable legal provenance and prove a distinct misft in terms of linguistic coherence, what’s actually happening in a declaratory founding?

Constituent Power The theory of constituent power that made the people an inexhaustible font of political authority in periods of change may date back to English constitutional crises of the seventeenth century (Loughlin 2008, 27) or even to a Machiavellian encounter between fortune and virtù in the sixteenth century (Negri 1999, 60). The most celebrated statement of the theory, articulated by Abbé Sieyès (1987) during the French Revolution, does not so much account for, as name, a form of popular sovereignty that stands behind and prior to political order.The people in Sieyès’ account are more than just “people” in the sense of a populace; they are a collective entity that takes the form of a nation or “people” understood as a singular noun (Canovan 2005). By communicating its wishes Sieyès’ people-asconstituent-power provides the originary legitimacy behind political authority. When ordinary politics falters, a population falls back upon this primordial and indestructible form of political life from whence the process can begin again.The defning feature of the constituent power, then, is that it survives.

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Questions around constitutionalism, and frictions between “the people” and the law since the 1990s, have brought Sieyès’ formula back to the fore in legal and political theory. A wave of constitution-making that followed the fall of the Soviet Union renewed questions around constituting authority. The idea that with the end of the Cold War history had arrived at fulfllment in a liberal order (Fukuyama 1989) meant there was only one ft language for the vox populi to speak and it turned out to be a language best spoken by legal and political experts: liberal constitutionalism. But if liberalism ended the twentieth-century triumphant, the achievement was feeting.The rise of non-state actors – from terrorists to supra-state conglomerations and global industry – closed in on the sphere of political authority associated with the nation-state until sovereignty itself was in doubt, undermined from below by decentralizing forces like sub-state nationalism and from above by the increasingly globalized dimensions of everyday life. If the popular sovereign could only speak one constituent language in this new order, it could say less than ever before. Yet as persistent change placed fundamental structures in play, questions around authority and authorization became unavoidable. Sieyès’ “people” proved reluctant to resign their position of authority and unwilling to accept the role of silent partner in the project of liberal ascendancy.Without adequate popular credentials, new political structures accumulated a deepening democratic defcit (Colón-Ríos 2012, 2), a problem that manifested in repeated EU treaty defeats and the rise of euroskepticism (Startin and Krouwel 2013; FitzGibbon 2013), abortive attempts to renew constitutions (Russell 2004), and the rise of populist politics (Mudde 2004; Roodujin and Akkerman 2017). But with power increasingly locked down into domestic law and international regulation, popular consultation among restive populations looks like an increasingly ill-advised gamble, making the missing legitimacy element ever more diffcult to address. While he gave only the broadest outlines of the concept, Sieyès suggested a special assembly could meet the requirements of constituent power, which he insisted “had to be exercised” through representatives (Sieyès 1987, 173; Tuck 2015, 164).Yet at the heart of Sieyès’ claim was the idea that no body smaller than the national population could be taken as a genuine manifestation of constituent power, revealing a dangerous tension between the concept’s populist core and its representative practice. Constituent power, it turns out, solves the problem of democratic authority and authorship at the cost of daunting problems of mediation. Embedded in the representational concept are problems of time. Even if an entire population could be assembled or represented, no population remains static. The people is more than the sum of its living electors, however comprehensive (Tuck 2015, 242). Constituent power thus invites a common complaint made against social contract theory – that it privileges the wishes of a single generation. But there’s an important difference to be noted. In social contract theory, diverse individuals compact together to create a political unity. In the case of constituent power, unity is taken as preceding the action, which leaves something of a mystery.

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If political practices and mediating representative institutions are the creation of constituent power, then how can a collective express itself before their arrival? Indeed, can a demos, however primordial, even exist in their absence? Jacques Derrida framed this question with regard to the American founding by asking simply,“who signs?” its founding document. His answer – that “the signature invents the signer” in an act of “fabulous retroactivity” (1986, 8, 10) – does little for the intelligibility of the concept. If it takes a constituent power to constitute (in the sense of render or make present) the all-powerful constituent power, then we face a self-defeating incongruity. And if the success of this operation ultimately rests on adaptive self-delusion, then the temporal and representational challenges surrounding the concept remain entangled in a single ugly knot. The diffculty in representing the constituent power therefore lies at the heart of the concept’s credibility. The credibility issue must be defused before the idea of constituent power can be useful in addressing current crises in political authority. Much of the new work on the topic is therefore focused on how this expressive element works.Two thinkers have been especially infuential in the recent revival, shaping the direction of the debate around two poles, one focusing on populist leadership, the other on popular engagement. Carl Schmitt favored a purist idea of the constituent power as a pre- or extralegal force. For Schmitt, problems of representation were solved through leadership, which channeled the national people as a kind of secularized god into a political order centered on one ultimate decision-maker (2005). Against the Schmittian view – although she is sometimes read alongside him (Kalyvas 2008; Wenman 2013) – Hannah Arendt argued that the human capacity for absolute beginning needs no special representation but does have a characteristic form of expression. It appears in the form of spontaneous action and fnds stabilization through grassroots communicative institutions of political life, such as the small republican-style councils that preceded the American Revolution (Arendt 1963). The only representational system politics requires, in an Arendtian view, is that which we provide for ourselves by living and acting among others. Debates in American constitutionalism have largely trended in a Schmittian direction, leading to an emphasis on exceptionalism, populism, and personal leadership that tends to enlarge executive authority (Arato 2000, 1746). Arendt’s participatory politics, in contrast, leans toward a more democratic solution (Wenman 2013), although her celebration of pure beginning has been criticized for minimizing the violence and contingency that attends anything revolutionary (Honig 1991). Indeed both thinkers mystify the founding moment to some degree. Political beginning is for Arendt a “riddle” (1971a, 1,Thinking:214) and for Schmitt a kind of “miracle” (2005, 36).The problem of Sieyès’ representational mechanism has not been solved in these accounts so much as forced into a tight singularity. Despite its mystifcation and intensifcation, however, one element remains common between these accounts – that of voice. Decisionist or democratic, to become manifest constituent power must frst fnd its voice.

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By expanding Sieyès’ work in two quite different directions, Schmitt and Arendt refned the representational issue into a new set of problems focused around time, participation, and law. But efforts to work on these problems have led to fresh questions. Understood as an extraordinary event that breaks the temporal order, constituent power becomes diffcult if not impossible to evaluate since, by defnition, normal rules are suspended (Kalyvas 2008;Tuck 2015).Yet the closer a theory approaches the ideal of constant presence and immediate expression, the more it generates its own opposition (Negri 1999, 304), leading some to conclude that constituent power must come to terms with constitutionalism (Colón-Ríos 2012, 112). But institutionalizing this force carries its own dangers, including constraining the possibility of radical change (Wenman 2013). If some constitutionalist and democratic readings of the constituent power risk pacifying necessary sources of transformative democracy, populist formulations run an equally troubling risk of dangerous romanticism because the people-as-singularnoun exists only at the level of political abstraction. Real people may really assemble, of course, and offer preferences of all kinds. The abstraction comes in when this cacophony is taken as a common, transgenerational voice. The multitude is real enough, but hearing the expression of constituent power from a multitude takes some form of aggregation or mediation, and that has yet to be accounted for. By insisting that a representational instrument could be created, Sieyès averted the problem of abstraction at the last moment, without addressing how this representation can be rendered legitimate. One candidate for this mediating force has been the idea of law. In Schmitt’s view, this works in certain ways but eventually comes up short until it is necessary to work beyond it, something only a powerful leader can do (2005, 66). But an executive empowered to act beyond the law creates the danger of a runaway mechanism capable of undermining both law and constituent power and destroying the people that put him in place. Keeping constituent power vital therefore requires caretaking the interaction between law and those it governs (Colón-Ríos 2012). The problem with a hybrid legal-political solution to constituent power, however, is that law inhabits a different conceptual order than politics – one centered on coherence and integrity in contrast to politics’ immersion in pluralism and difference.While politics is constantly coming up against the new and strange (Lindahl 2015, 172), the tendency is for law to turn inward in pursuit of completeness and may end by excluding constituent power as something redundant to liberal constitutionalism (Dyzenhaus 2008). Sieyès maintained that constituent power remains distinct from the constituted power to which it gives rise, meaning it cannot be entirely absorbed into the constitution-making process. If it could, it wouldn’t have the capacity to outlast the constitution, and its contribution to the problem of law’s origins would be null. Only through the assumption that law is without beginning and end can the legal viewpoint be sustained. Constitutions exclude declarations of independence then, not because constitutionalists want to claim the mantle of founding speech,

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but because there’s no language for founding – for raw beginning as opposed to delegated and authorized actions – that can be made coherent within law. Framing founding as constructed doesn’t avoid problems either, because we still need to explain how this construction happens if we want to avoid the kind of “Edenic” thinking that John Seery detects in post-structuralist efforts to engage foundations (1999). Martin Loughlin believes constituent power is simply “messy” and distinguished by its capacity to keep open the question of who speaks and for what community (2014, 299, 234), although this still doesn’t explain how messiness ensures openness. An account of constituent power must therefore incorporate the ordinary with the exceptional, explain what is happening in the critical period when we move between them, and why that moment combats closure.

Process and Imagination Constituent power persists as a concept because law and constitutionalism need it to.This exogenous force can take the form of a democratic populace that punctuates law with popular mobilization (Ackerman 1991). But such dualism rarely accounts for who gets counted in or out or why some extra-legal mobilizations work and not others. The externalization of constituent power in dualist constitutionalism hasn’t resolved its relation to politics; if anything, it magnifes the problem by multiplying its appearance. Schmitt, for whom sovereignty was the capacity to exercise decision-making in extraordinary circumstances, warned against efforts to domesticate its explosive potential (1996, 61). If Schmitt is right and this power can be exercised but not tamed, then it always remains at one remove from constitutionalism. Seen in this light, its appearance in advance of any formalized constitution may be the best evidence in favor of viewing the declaration of independence as the premier expression of constituent power. Declarations may not be constitutional then, but it’s hard to see how a modern constitution could operate in their absence. The stabilizing effects of law and the mobilizing effects of populist democracy thus pull against one another.While this dynamic may never be entirely resolved, some believe it can be understood and responded to adaptively (Colón-Ríos 2012; 2020). But there’s a dark side to the dualist dynamic. If it secures law against the most foundational forms of disruption, it creates an opening for the neglect of democratic credentials. A false sense of security around the adequacy of law and constitutionalism can in turn stall legal development at the national and international level, leaving politics vulnerable to the demagoguery of Schmitt’s great leader fgure. Under this scenario, law itself proves destabilizing and a return to democratic engagement looks like the best hope for restoring equilibrium. The problem is that moments of populist politics, however essential or exceptional, are always the product of historical contingency and are all too often accompanied by levels of violence that are indefensible. Seesawing between the rigidities of law and the volatility of populism looks like an unappealing long-term solution.

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Recent efforts to account for constituent power in the context of democratic constitutionalism divide along a line that in some ways mirrors this original tension. Constituent power is either envisioned as a force that can be captured in process and procedures or it’s characterized as something that exceeds regulation, as a kind of creativity or imagination that breathes life into the political project, but which must be kept open to revision. Process theorists believe that constitutionalism should fnd a way to constructively internalize and regularize the authority of the people.That means identifying ways to manage the uncertain powers and demands that emerge in the guise of the people, either by looking at constituent practices from around the world to identify best practices or by considering the people as a series of historical events that demystify the founding moment. Theorists of imagination, on the other hand, focus on how constituent power delivers something law is not well positioned to address, which is the broader framework within which normative or rational practices unfold. Imagination is evident in how this background context changes over time, so to understand constituent power means understanding what makes it possible to imagine this force in the frst place, as well as what keeps it from becoming an unimaginative dogma. Andrew Arato adopts the process framework for constituent power in an effort to develop a post-sovereign paradigm for state founding and renewal. He recommends moving from a concept of constituent power as a “unitary, embodied popular sovereignty” toward a constituent process where democratic legitimacy arises in a collective public discussion organized to express plurality rather than univocality.The association of constituent power with popular sovereignty is, he feels, an unhealthy fction. Although he argues sovereignty was “from the outset” also “a category of international law,” it is closely related to revolution and easily licenses excess. Part of the problem is that the idea and the execution of the concept are misaligned. “To be politically supreme or to be the ultimate center of decision an entity or agent,” he says,“must frst exist, and second be capable of action” (2017, 1, 61, 101). Constituent power is neither. It can only operate as a form of representation, and its primary form of representation is a myth. Instead of coming to terms with “mythical group constructs,” Arato recommends attending to the lessons of the American founding, which owed its success to the preexisting structures of federalism that divided the exercise of constituent authority among multiple bodies, making possible a new regime “while avoiding total ruptures of law and power.”The multiplication of legislatures or constituent bodies ensured no one entity could monopolize legitimacy. The effect of such “antinomies” is to dampen excess and promote a healthy and sustainable balance of power (Arato 2017, 19, 185, 106). Another important feature of a distributed constituent process is that it tends to maintain legal continuity. Since the unifed persona of the “people” was diffcult to hear from decisively, the “different meaning of the people” in the different states operated as a diffuse rather than a sovereign force. Arato also points to the importance of time in the constituent process. Revolutions have a tendency to accelerate time, creating urgency around

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decision-making. Dividing the sources of constituent authority serves as a way to “decelerate” a process that can become a victim of its own enthusiasm (Arato 2017, 288, 323). For this reason, he also recommends a differentiated constitutional process, with an initial but interim constitution that sets the framework for a second and long-standing constitutional effort that would incorporate popular consultation and normative education. In this way,Arato’s constitutionalism internalizes constituent power in the name of legal continuity. Joel Colón-Ríos shares Arato’s concern with the constitutional process but argues that the problem has been too much legal continuity or continuity of the wrong kind based on a fear of change. As he put it: “Constitutional theory has turned its back on democracy.” Constitutions need to be able to account for their democratic legitimacy, and that requires being open to democratic reconstitution (Colón-Ríos 2020, 1, 3). He rejects the alignment of constituent power with sovereignty because it suggests something uncontrolled and uncontrollable but insists that the constituent power of a democratic people should still be understood as having a “juridical nature” by virtue of its special role in constitution-making. Constituent power is “based on and limited by” this “commission” (Colón-Ríos 2020, 28, 260) and does little else. It’s not clear from his work whether declarations of independence fall under the commission of the constituent power, but Colón-Ríos is clear that the constituent power does not partake in conventional governing. In fact, the exclusion from governance qualifes a democratic people for its extraordinary role in constitutional authorship. Liberal constitutionalism tends to close itself off from this source, to its detriment.What is needed, Colón-Ríos suggests, is institutionalized opportunities or mechanisms to open law back up to this democratic infuence in its special juridical form. When democratic openness stops at consultation or negation – the opportunity to advise or resist – an important form of renewal is blocked. Instead, democratic constitutionalism should seek ways to “leave the door open” for future constituent efforts (Colón-Ríos 2020, 11). While Colón-Ríos is focused on prospective appearances of the constituent power, Paulina Ochoa Espejo is interested in how the concept of process helps resolve the issues of foundings past. Few foundings can live up to the terms of unity and univocality that the constituent power suggests, especially if the legitimacy is grounded in a specifc manifestation of the people. But Ochoa Espejo is not persuaded to dismiss the people as an unhelpful myth. Instead she recommends conceptualizing the people as a process that operates across time. Conceiving of constituent power as “a series of people events coordinated by authoritative institutions” solves the problem of how the voice of the people appears because mediating institutions are always available.These institutions were themselves constituted by a prior people-event and so on.The vicious circle that’s set off when questions are raised about how the people can speak before a founding takes place is, she believes, resolved “if you dissolve it in the past” because this

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move “effectively eliminates” a founding moment that “legitimized the state once and for all” (2011, 175). Even if a state’s origins contain some undemocratic elements, these can be “modifed over time” to “alter the people boundaries retroactively,” she argues. In this way, the constitution of the people can be “legitimized from the standpoint of the future.” Legitimacy doesn’t come from the beginning then; it comes from how the project is continued and how it remediates itself in a self-healing process as a collective, cross-temporal exercise. Rather than becoming “smitten” with the democratic paradox, she recommends adopting a process perspective as a way to grasp self-creation without contradiction (2011, 176, 183).Throughout the exercise a people is, admittedly, shaped by the circumstances they fnd themselves in, but for Ochoa Espejo, this is a strength rather than a liability because it doesn’t require perfection at any one particular moment. It also makes room for normative change so that no one is bound to the conditions of beginning and there are no fctions of consent.The problem of popular voice is solved, she argues, by showing that the people are never all there in one moment and “the people cannot be unifed” (2011, 194). Ochoa Espejo thus eliminates the need for popular voice at a founding moment to serve as the backstop on democratic constitutionalism.And with that goes the many fctions, instabilities, and idealizations that surround the claim.This is not a constitutional process, per se, but it does use the “how” of constituent power to dissolve the unitary “who” of peoplehood that sets up the founding paradox. Rather than dissolve the idea of the people in a historical process, Kevin Olson focuses on unpacking its genealogy to show it operates as a function of political and social imaginaries that are never entirely stable or complete. Olson calls the idea of the people-as-constituent-power a “folk paradigm” that provides a “frame of reference” for modern democratic projects by securing its normative underpinning. The idea has become so “deeply embedded” in modern thinking that it provides “the wallpaper of our shared world” (Olson 2016, 6). But it had an identifable beginning, Olson argues, and emerged gradually out of older ideas around sovereignty through re-imagination.This is not merely a conceptual process, he stresses. Material processes ranging from revolution, to popular festivals, to the arrival of print provide components of the imaginative evolution that crafted a new “symbolic vocabulary” for popular sovereignty (2016, 89). Because the people as politico-normative imaginary provides a way for “beliefs to become reality,” this new imaginary offers “a story of magic, enchantment, and transformation.” But it can also be used “cynically” to promote secondary ends. For this reason, this “fantastic character” needs to be questioned and not merely accepted as the avatar of “freestanding natural rectitude.” The problem is that, although constituent power provides a normative foundation for modern democracy, it is “crypto-foundational” because the collective imaginary which yields it tends to naturalize the idea of the people until it “serves as an implicit,

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disguised, unrecognized foundation” (Olson 2016, 4, 14, 8). The important tension for Olson lies between the ossifcation of imagination into rigid form and fnding a way to maintain openness to its contingent and pluralist content, as well as its potential for revision. By unearthing the many ways the collective imaginary emerges, and by making clear its “performatively self-contradictory” claim to selfauthorship, Olson hopes that its problematic and unstable character can be laid open to refection rather than simply debunked. He considers such revelations a “therapeutic” intervention in modern politics (Olson 2016, 177, 170). The idea of the people as a claim lodged in symbolic language and unfolding through revolutionary actions that are never quite adequate to their conceptual task also animates Jason Frank’s work on the American founding. Frank concentrates on the moments where symbolic action comes to a head and points out that these moments always fall short of requirements. Because they rely on a cast of dubious characters – including “imposters, radicals, self-created entities” – to carry out the work, a certain gap in authority remains transparent. The political project that follows never entirely escapes this initial shortfall or manages to paper over its origins, so that the gap “spurs its continual revision.” Frank, like others, stresses the performative dimension of constituent moments while foregrounding the incomplete quality of that action (2010, 8, 9, 33). While Olson starts his exploration of the people in the French Revolution, and Frank starts his with the American Revolution,Adam Lindsay roots the constituent imaginary even further back, in Hobbesian theory. More specifcally in Hobbes’ critique of the Scottish Covenanters, from whom he liberally and stealthily borrowed in framing his own social contract theory. Hobbes recognized these early experiments with constituent power dabbled in “a phantasm of the mind,” with world-building potential.The signifcance of Hobbes’ discovery, for Lindsay, is that constituent power is not a preexisting capacity or resource, and it’s not a function of “collective will”; it’s a “malleable element of our political vocabulary.” Peoplehood wasn’t a real thing for Hobbes but it was useful as a “metaphor that shapes the various normative commitments of a group.” Under the Hobbesian design, Lindsay explains, imagination is not part of constituent power; rather constituent power is part of the imagination. Hobbes is therefore showing “the centrality of the imagination” because constituent power has no concrete origins in actual people, and the fact that associated claims can fail or be hijacked (as in Hobbes’ treatment of the Covenanters) refects this distinction (Lindsay 2019, 475–9, 491–2). If imagination plays a critical role in how constituent power is understood in contemporary politics, then theories of constituent power participate in an imaginary exercise. Zoran Oklopcic takes the approach that theory should therefore examine itself as a setting where the constituent imaginary unfolds. He argues that discourses around peoplehood can be thought of as ways to set the scene for a certain mode of political theatrics, one that remains open to re-dramatization for these reasons.The constituent people serves as the “fgurative ventriloquist of

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our aspirations” equipped with a polemical and plastic vocabulary and a “dramatis persona” that can deliver traumatic or utopian performances.The drama relies on stage effects and “scenic tricks” by the “conjurers of peoplehood.”These include international jurists whose fattened imagination produces a lifeless para-constitutionalism that mostly serves to lock the current dramatic and imaginative stage directions in place (Oklopcic 2018, 43, 83, 120). Oklopcic’s aim is to unsettle this pattern and restore possibility via awareness of the operations of imagination in our experience of the people. He stresses morphology – the capacity and possibility for change – as a starting point for identifying the operations and obstacles surrounding the constituent imaginary. Ultimately the drama’s salvation may be that its players turn out to be unable to “perform the role that they have been assigned.” But he also takes an irreverent, eclectic, and playfully ironic approach to the task of making these moments explicit because, he warns, the constituent imaginary, and by extension any theory that takes it seriously, is “always one step away from parody, or a step away from being parodied” (Oklopcic 2018, 158, xiii). One tension that emerges from this literature is between constituent power as a destabilizing force that threatens constitutional order and as a reifying force that emerges from imagination but threatens to lock down possibility through its overweening success. Issues of time prove critical because what’s constructive at one point may become ossifed later, or what’s incomplete at a founding moment can become dangerously absolute when admired from a distance. Time might also ease these tensions if it denies aspirations to perfection and unity for any one fxed point of origin, but this solution is hard to apply when founding moments take place right before our eyes, as they do in modernity.The diffculty of knowing whether constituent power should be approached through the institutional process or through popular imaginaries thus refects the protean dimensions of the concept.

Enigma and Trickery Efforts to account for the expression of constituent power in contemporary theory help map out the issues of popular voice by putting attention on the temporality of constituent mobilization, the plurality and instability of its expression, and its fraught but essential relationship with law. But when such accounts start with law or political authority as a going concern and ask about its reformation or amendment, they need not address the very frst appearance of the constituent power as a founding force. And they need not imagine a moment of law’s submergence by some form of alternative politics.That leaves them ill-equipped to address these possibilities in the future and handicapped when it comes to accounting for their own origins in the past.When such moments are addressed, the strongest accounts still echo with Derrida’s solution – foundings are best understood as moments of unwarranted audacity later redeemed through popular

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engagement (Lindahl 2015, 167; Frank 2014, 29). As currently understood, then, the concept of constituent power retains at its core the idea of an unauthorized and illegitimate progenitor – massive, extraordinary, and fundamentally at odds with the structures that make it possible. By partnering with law, constituent power can reform political order but it remains an enigmatic force that operates somewhere at the fringes of the recognizable system. In this dimension, there are two parts to the formulation of constituent power – one is the collective self that stands behind political authority. Because the unity that it delivers must be attributed before it can be demonstrated, it has the tendency to make claims about the people look like an “elaborate confdence trick” (Lindahl 2008, 11; Loughlin and Walker 2008, 3).The other part is a mechanism by which the preferences of this self are translated into political form. This is the representational element that Sieyès insisted upon, without adequately specifying. Subsequent theory has found it diffcult to address this second element in part because it has rarely been treated in isolation from the frst. As the ultimate democratic authority, it is assumed that constituent power can and must give voice to the law.Yet fulflling this function without incurring some democratic shortfall is all but impossible. The problem is that attempts to grasp the constituent dynamic quickly fall back into questions around the identity of a “people,” an identity that turns out to lack concrete form.The people in their grand constituent capacity simply cannot be assembled, cannot be queried, and cannot be polled.While it seems like we should frst be able to account for the people if we want to know how they speak and what they mean to say, this approach leads back to the ugly knot of representational anomalies, temporal contortions, and suspect abstractions. Richard Tuck suggests this impasse can be resolved by displacing the work of democratic voice. Citizens, he explains, can be “thought of ” as “formally authorizing a set of fundamental laws” without “necessarily of authoring it” (2015, 249). Tuck’s approach succeeds in skirting questions around the people by shifting attention away from the fgure of the author. But the risk is that representational problems are not so much solved as sidelined in this move. Nonetheless, the formulation suggests a way to approach the problem of representation without frst resolving the question of identity. It may be possible to address constituent power by starting with “how” questions rather than “who.”To put it another way, rather than the fraught idea of the people, an inquiry could start with the operations of voice.

Performatives Turning to how founding speech is articulated and received does not immediately resolve the issues haunting constituent power since beyond the thorny issues of constitutionalism lie equally diffcult questions around performativity.The problem is that placing declarations of independence under this category effectively

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surrenders the capacity to evaluate the results as an expression of some collective subject. For performativity means “there is no preexisting identity by which an act or attribute might be measured” (Butler 1990, 192) and the people “do not exist as an entity” (Derrida 1992, 10).This puts the implications of performativity fundamentally at odds with the idea of constituent power, and framing a declaration as a proto-legal performative creates more rather than fewer problems for democratic legitimacy. The problem with democratic coherence may lie with the desire to read the process of language, and of representation more broadly, as a complete process (Greenens et al. 2015).This desire is evident from the early days of performative theory when its conditions were narrowly defned. Performatives work, says J.L. Austin, who frst outlined this category of speech, only when people are already authorized to issue them (1975). So only a judge pronouncing a fnding of guilt or innocence in a properly conducted court case or a properly ordained religious minister can conduct their respective roles. Move one step beyond that predefned context into less regularized forms of language like jokes, playacting, and poetry and Austin surrendered all claims on the effectiveness of language. Austin’s theory was critical for showing that truth could be produced or performed rather than discovered. But the price of this account was a kind of rigidity and formalism that quickly collapsed. Derrida showed that the forms of authority that Austin imagined were never stable enough to account for performative speech single-handedly, meaning that some unaccountable element always haunts the process of language.This unaccountable supplement can cause speech to tumble into what Derrida characterizes as a “ditch” surrounding ordinary language, where Austin’s unauthorized and atypical performatives arise (1988, 17).This is a kind of linguistic no-man’s-land where the operations of language start to come apart at the seams. Performatives, in the absence of stable habits of political and social life, are simply not the secure and effective utterances Austin imagined. Judith Butler takes the element of uncertainty that Derrida identifes and uses it to outline a form of agency that straddles the line between signaling the presence of authority or identity and simultaneously unsettling and reforming them. Despite the emancipatory potential to this account, Butler cautions that the performative never entirely supersedes the system of authority in which it appears, and it’s not true that “any action” is performatively possible. Moreover, Butler sets out to exorcise one critical element from the idea of performativity – the idea of a subject position from which an authentic expression of will is issued. Reading performativity as the expression of “willful and arbitrary choice misses the point,” she warns, because “the historicity of norms is central to its operation.” Indeed she suggests that what Austin took for granted – the idea of a recognizable subject of speech and action – was itself an effect of discourse rather than its origin so that performative speech causes or creates the conditions we need to understand such speech in the frst place (1993, 187).

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Translating that into the terms of constituent power, Butler’s theory effectively suggests that there is – to coin a phrase – “no they there.”The incapacity to completely distinguish the performer from their conditions, or to delineate a “constitutive outside” that can stabilize a familiar realm of materiality and subjectivity as a politically enabled inside, means a performative can never fully deliver on its promise. In the end, the performative is not the act of the speaker or performer, however much we want to think so. Such authorship is never secure because there is an inevitable “failure of discursive performativity to fnally and fully establish the identity to which it refers.”There is always something “unsymbolizable” which remains a “threatening possibility” for the representational system (Butler 1993, 188; 1990, 192). What Butler’s reformulation of performativity has in common with Austin’s original account is that it rests on the presence of some recognizable representational or symbolic order. The difference between them lies in the malleability, refexivity, and completeness of authority as a dynamic. Austin puts the emphasis on what a performative can create or achieve but recognized that interpretation injected an element of uncertainty into the process. Derrida fags the instabilities that haunt this process and shows that this element is endlessly expansive. And Butler shifts the attention outside the authorizing order to show that what gets left out becomes the “mobilizing incompleteness” behind a performative operation (1993, 195). But she never suggests this force operates in isolation. Stark though the contrast may be among the resulting accounts, the difference here is one of emphasis and degree. Performativity in each case presumes a social and political authority structure as a going concern in terms of the representational context within which (and on which) the performative operates. The problem becomes more complex when the idea of the frst performance is raised. Indeed Butler specifcally warns against this idea saying performative agency “can never be understood as a controlling or original authorship” over a “signifying chain” and it “cannot be the power, once installed and constituted in and by that chain, to set a sure course for its future” (1993, 219). A performative can deliver something special nonetheless. Beginning with “embedded conventions” that have already been “invested with the power to signify the future” the performative can convey something that has been reworked “into the production and promise of ‘the new,’” while remaining “a site of permanent contest.” Key to this operation is the readiness to upset the conventions of the symbolic order through repurposing – or as Butler puts it, using “proper names improperly” (1993, 220, 222, 218). But this impropriety, however new and promising, remains tied to an order of propriety that makes such deviations apparent. Explaining founding speech as a performative is therefore a long way from accounting for its effectiveness. Because it operates in a linguistic grey zone in terms of authorization, it falls among forms of language that Derrida recognized as unstable and uncertain in the extreme and which Austin outright disowned. And because it rests on the idea of a constituting subject and an originary act, it

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can only work by having something to transgress and adopting a guise in which to do the transgressing. Because founding speech must operate in the absence of the normal practices that ground the operation of other performatives, because even the best explanations of it, like Derrida’s, tend to invert causality, founding speech starts to look like a kind of “magic words” approach to politics. The alternatives to the “magic words” approach aren’t a whole lot more appealing. Because the only other real alternative is that the founding performative is essentially a sham – a “bold act of ventriloquism” (Frank 2014, 29) that escapes accountability only because it generates the right effects. Seeing a declaration of independence as a form of performative proto-law thus casts it as either a generative fraud or useful transitionary object, both operating just long enough until other (more reliable?) processes get started. In either case, the action is elsewhere, like a magician’s sleight of hand that distracts an audience suffciently to substitute one object for another. Overlooking problems of performativity in a declaration helps create the illusion of intelligibility, but if these accounts are right, the document is hardly more than a distraction. This isn’t to say that founding speech is transparent outside of the context of constitutionalism or performativity.The problem of speakership persists even if the speaking subject is reimagined in an opportunistic guise. Because it leaves open the question of how a single document can express a cross-generational multitude, something Butler’s performativity simply rules out. A declaration of independence also brings temporal issues to a head. Appearing at a specifc moment in history, it marks a rupture in time associated with the arrival of something new, yet is also situated as something timeless. Finally, the success of the document as a development in modern, legal, and political history obscures other, perhaps earlier, ways of expressing founding authority in speech, such as Indigenous communities that may favor alternative modes of law (Tully 2008, 337, 2016). It turns out that founding speech as a general category carries the same issues as those that plague the idea of a constituent people. It is woefully underspecifed, and its concrete forms of representation are not nearly as straightforward as they appear. But there is one saving grace to the declaration of independence. However suspect or problematic, it is an actual event and not an abstraction.And that means it is possible to drill down on this event in a way that is diffcult to do with the broader question of constituent power. Moreover, despite their limitations, the combined evidence of history, international law, and political theory suggest that declarations do work as founding speech (although not in every case), even if it is not entirely clear how they work. Despite the twentieth century being punctuated by the use of declarations to found new states and regimes, a trend that continues into the twenty-frst century in some form, the primary documents of founding speech have remained largely extraneous to the main course of debates on constituent power.This leaves founding speech in general, and the declaration of independence in particular, in a peculiar position. It is the single most important document in the world when

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it comes to establishing new states and has become central to legal practice in the international arena, yet for constitutionalists it is a marginal curiosity, while for many political theorists it’s a sideshow on the real event, which remains obscure and miraculous.This situation may be starting to change. Pauline Maier opened a new line of inquiry on founding speech with her careful study on the origins of the world’s frst declaration in the American colonies (1997). Jason Frank followed in this tradition by exploring the way aesthetics and representational practices contributed to the populist and democratic force of founding speech in the American case (2010; 2014). David Armitage broadened the scope of research beyond the American setting by placing the declaratory founding squarely at the heart of global intellectual history and providing the frst meaningful catalog of declarations of independence worldwide (2013; 2007). And although they do not address declarations of independence specifcally, a number of other works take up the role of speech at a founding, considering, for instance, how Lucretia’s suicidal demand for retribution triggers Roman transformation (Matthes 2000), how the pathos of Virgilian lyric captured the Roman restoration (Lowrie 2005), or how the readiness of even one individual to articulate a personal vision for politics can leverage change (Jenco 2010). By taking up the issue of voice, these works point toward a new perspective on political origins.

Methods for Founding Speech Words are the common currency of political life, meaning constituent power must at some point move from a general idea to specifc articulation.This juncture, where founding speech becomes a specifc and identifable entity, marks a critical transition point for constituent power in the movement from an abstract idea to political happening. Seen from this perspective, founding speech is not an abstraction but a tangible practice. By virtue of being concrete artifacts, founding documents demand a concrete explanation, grounding the constituent process in contingent reality. Being an artifact of history, a document also preserves some sense of the moment that created it. Moreover, from the point of view of global history the one thing founding speech is not is exceptional since some form of founding announcement is now the norm in state origins.These factors suggest that a comparative examination of founding speech can open a new perspective on the problem of constituent power.This project therefore approaches the problem of constituent power by asking: how has it been expressed in language? Or to put it another way, how have people founded a new political order in speech? Although they are used alongside one another here, it’s important to note that “constituent power” and “political founding” are not directly interchangeable terms.While constituent power could arguably describe any entity capable of getting a new political order off the ground, in practice, it refers to the modern idea of popular sovereignty.The composition of the constituent power is inclusive and

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pluralist, and its actions are focused in a single direction: the creation and maintenance of a legitimate constitutional order. Political founding, in contrast, leaves the form of governance unspecifed and the central actors unidentifed. Founding, therefore, is a more encompassing term for what the constituent power is doing. But founding is constrained in ways that constituent power is not because it singles out a particular point in time. Foundings tend to transpire in critical “moments” while constituent power lingers indefnitely. To put it another way “founding” primarily signifes time, while “constituent power” primarily signifes actors.To complicate matters further, in the United States, the language of founding has become associated with a certain brand of ideological conservatism, but there is nothing inherently conservative about founding per se, and Arendt favored the term as a way to reference history-making spontaneity that suggested a capacity for renewal was endemic in the human condition (1971b, 2,Willing:216). So while tensions exist between the actors, objectives, and temporality implied in these two terms, they also counterbalance one another in productive ways, keeping open the issues of who speaks, when, and why. For this reason, both terms are used throughout this discussion. A second term that should be clarifed in relation to constituent power is popular sovereignty, or sovereignty per se as the object or outcome of popular voice once institutionalized into a democratic order.As a concept, sovereignty carries the implications of absolute authority.While constituent power is sometimes framed as popular sovereignty, it need not always be seen in this light. Indeed Sieyès’ own insistence that constituent power had one job – to create the institutional order – after which it should go back about its business, suggests something much less absolute in scope.This project doesn’t take up the question of sovereignty or its limits directly, but it does address popular sovereignty as something episodic. That orientation is a product of looking at its operations during moments of founding, and a different approach might highlight different effects. What should be made clear is that popular sovereignty is not addressed as an absolute, overarching, or miraculous force beyond the scope of conventional politics. If that were the case, there would be little point in asking how the people speak because the utterances of such an entity would bear little relation to what we know about language. This project begins from the view that when founding speech surfaces in the form of a declaration, it is not irrelevant to law and it is not unintelligible as language. Founding may be an extraordinary event, but some dynamic must account for founding speech, and that means it should be possible to consider these actions without casting the sovereignty it introduces as magical or otherworldly. Moreover, while the declaration of independence has become its most recognizable form, political beginning is not an exclusively modern or even an exclusively legal phenomenon.There are no grounds, therefore, to assume that the declaration exhausts the possibilities for founding speech even in a modern era, meaning we can still learn from other eras and consider other forms of political expression beyond the standard global model.

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That said, founding presents a special challenge for theory. Because each founding marks the arrival of a new political entity, no two are the same, and each appears in its own context and history.Yet to be recognizable as such, a founding – or refounding in the case of major constitutional realignments – must have some commonly identifable qualities.When speech becomes a way to signal that dimension of politics, it needs to carry with it common elements of representative practice. These include conventions that make it performatively intelligible, distinctive qualities that refect a given political setting, and some means of signaling the presence of the new. Any account of founding speech needs to preserve this convention-innovation tension rather than overcome it. Even when it germinates in an authoritative vacuum, the new must manifest in an ongoing world. Eternal principles can look like the only option for understanding a phenomenon that originates beyond specifc political conventions, but there are dangers to this solution. David Miller, writing about political identity, cautions against an approach to theoretical questions grounded in the search for “fundamental principles” that hold “regardless” of the vagaries of human experience, saying that it ultimately invites “lamentation” for what cannot be attained (2008, 4).When it comes to political founding, the stakes are actually even higher. Because when ideas of the nation or imagined origins become placeholders for a politically purifed ideal, then lamentation can all too easily turn into forms of resentment that undermine political life. Miller recommends a contextualist approach for political theory because it takes political practice as a starting point and aims at a theoretical structure that mirrors in complexity the political landscape it contemplates.The difference with applying contextualism in the case of political foundings, however, is that, unlike the distributive or identity questions that Miller contemplates, founding begins as an exception or interruption that unravels the context for evaluating or understanding politics. If the conventional methods of politics are momentarily suspended, then the challenge is to fnd a way to grasp this operation. An approach to foundings inspired by the contextualist approach must therefore avoid the dangers of lamentation and mirror the complexity of real politics without leaning upon the framework of conventional politics Miller uses to navigate concerns over identity. But while its primary use has been to illuminate the requirements of justice in everyday politics, contextualism is not limited to conventional events. If the core of the approach involves a willingness to move back and forth between theory and context, there’s no reason why it cannot also be used to explore exceptional moments such as founding. In detailing the advantages of a contextualist approach, Joe Carens points out that attention to lived experience allows us to “test the persuasiveness” of theoretical accounts and identify “forms of wisdom that are missed” in prevailing theory. Most importantly, it defends against ideas hardening into conceptual “blinkers” (2000, 2–3). Granted, any fndings are to some degree a product of the context from which a given founding is viewed. But in the absence of an Archimedean point, from which to survey the political

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universe, this is the only perspective available. It might be argued, however, that contextualism isn’t as new as it seems. Indeed it could be argued that what best distinguishes political theory from its nearest relative in political philosophy is that it is already committed to remaining close to lived politics, warts and all. When it comes to a choice between ideal or universalist theory and its particularist or contingent expression, political theorists are people for whom that question is, to some degree, already settled. So what does contextualism add to political theory beyond what is already built into the activity? For one thing, it demands much more awareness around case selection. Case selection has not been a traditional concern for theorists. While most happily draw from experience, it is rarely with the careful deliberation of other empirical researchers, and it is rarely pursued as a specifc strategy for developing insights.This may be changing under the infuence of new methodological awareness. Comparative political theory, for instance, suggests that looking beyond conventional canonical texts enriches political thought.The comparative approach emphasizes the signifcance of dialogue and recommends engaging with non-Western sources of learning to deepen theoretical work (Dallmayr 2004). In a similar vein, Carens argues that adding unfamiliar cases to a discussion means the dimensions of a theory can be more thoroughly explored.A theory developed with reference to a single paradigm, if it rarely looks beyond that case, becomes prone to the kind of blinkered thinking Carens worries about. Founding speech seems like an instance of this case-selection issue at work. Theorists have made tremendous strides by looking at the American experience, which remains rightly celebrated. But one case is hardly suffcient for a phenomenon with global implications. Hannah Arendt extended her analysis to include the French Revolution, the Augustan restoration, and other elements of the ancient and modern world and in doing so helped put the American experience in a broader context.Yet theorizing in this area still remains centered on the American experience as the index case of modern founding.Where diversity appears, it often comes in terms of the variety of theorists addressed rather than cases considered. Antonio Negri, for instance, positions the American experience within a global pattern of evolution concerning popular sovereignty, but his analysis is organized around select intellectuals (1999). Mark Wenman’s work on the pluralist and agonistic dynamic behind constituent power takes a similarly theorist-driven rather than case-driven approach (2013). Martin Loughlin and Neil Walker take a consciously global view of constituent power in their edited collection and include carefully selected cases that produce a rich comparative starting point (2007). But their work is focused on law and constitutionalism and, for that reason, leaves the more ambiguous question of declaratory founding aside.What contextualism requires in this instance, therefore, is to join with efforts aimed at diversifying the conversation on constituent power while adding new cases to the mix. Substituting unfamiliar and unexpected cases in place of the usual suspects of theoretical analysis, Carens says, is a means of “unsettling” the prevalent

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assumptions of political theory in productive ways (2000, 4). In addition to revisiting the American paradigm case and the theory it has inspired, this book takes up three such cases and adds them to the theoretical conversation that has its roots in Hannah Arendt’s work. Each represents a stark departure from the pattern identifed with American founding and lacks the key conditions Arendt identifes.The frst case, the Republic of Ireland, witnessed a heroic effort at founding speech that failed spectacularly on its frst arrival, only to be subsequently revived. Judith Butler has emphasized the signifcance of failure to understanding performativity; indeed, she claims that performativity “depends on failure” to some degree (2010, 159). Examining cases of failed declarations, especially when they include subsequent redemption, may therefore shed light on what is happening in founding speech. The next case is distinguished by the absence of a singular moment of founding speech.Yet when faced with a secession threat from Quebec, Canada’s highest court produced an extraordinary statement on the conditions of declaratory founding. The judgment required the justices to hear absent historical voices while sanitizing Canadian legal history of its many disorders and suppressing the contribution of Indigenous traditions to Canadian constitutionalism in the process. Indigenous peoples in Canada use a mode of legal reasoning that navigates the relationship between disorder and renewal via story. Putting Indigenous law back in the picture makes the anomalies in the Canadian case less mystifying and deepens the resources for addressing beginning. Both the Irish and Canadian cases therefore shed new light on founding speech and qualify as the kind of “unfamiliar” or unlikely cases that Carens recommends (2000, 4).While they suit the requirements for a contextualist study, their selection also owes something to personal circumstances.These are both cases I have researched and published on, as well as countries I have lived in. Moreover, I am a citizen under both these foundings, meaning that when “the people” speak in these instances, it is my voice among countless others that they claim to represent. These cases will be complemented by a fourth case that brings the discussion into the twenty-frst century. Scotland is regarded as a global exemplar for best practices on independence because it approached the issue as a concrete and measured legal and political process.The Scottish government’s planning around a 2014 independence referendum was designed to ensure that there would be no break in law or authority and no disruptive disorientations of beginning to any founding moment.The Scottish case shows how the central moment of founding speech has shifted from an authoritative but elite document toward a popular referendum. But it also showed how diffcult it is to maintain clarity or assure continuity when an entire population and at least two major governments are involved. These cases are diverse, and each experienced dramatically different conditions for founding, whether achieved or anticipated. But they are not globally representative.They are all offshoots to some degree or another of an Anglo-European tradition. Moreover, all achieved or seek independence from the same parliament

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in Westminster. This makes them a tightly knit selection overall. Having a common starting point in Westminster government reduces the variables at play and keeps the focus on the founding effort in the selected cases. More importantly, declaratory founding emerged out of this tradition, starting with the American case, so it seems a reasonable place to start. Assuming there’s some commonality between the operations of founding speech in the modern era, it should be detectable in these cases.

Overview of the Argument The argument begins in Chapter 2 with the representational diffculties implied in constituent power and suggests why performativity isn’t entirely up to solving them.The problems of a performative approach appear in the American case, where the accounts of Derrida and Arendt seem to suggest that founding speech drew authority from its own extraordinary performance. Judith Butler warns against this kind of thinking because, while performativity may scramble or parody convention, it cannot escape the conditions of speech.The idea of retroactive endorsement entangles theory in mesmerizing circularity until it helps create the validating effects it claims to discover. Turning from theory to experience, Chapter 3 takes up the American case.The American Declaration appeared at the end of a long line of petitions and resolutions, and the rhetoric of the document is caught between sincerity and artful persuasion in an era when ventriloquism became a commonplace feature of public speech. Emerging international law norms may have inspired the declaratory form, but these norms invite rather than deliver judgment.Together, these features reveal a complex story of voice in the American setting and turn attention to its conditions and omissions as a riddle to be engaged. Chapter 4 considers a quite different declaratory founding: the 1916 Proclamation of the Republic in Ireland. Issued in a short-lived uprising, the Irish document seems to follow the American model, but its origins, contents, and reception were radically different. Framed in prophetic poetry, it makes subjectivity and tragedy central factors in the founding dynamic and evokes ancient law and sovereignty myths for its authority.The Proclamation thus works out of a zone of language where performativity is least certain and leaves the question of seriousness up to its audience. As noted, Canada has no declaration of independence. But it is the source of an infuential statement on the relationship between constitutionalism and political founding that mandated clarity, order, and mutuality in the operations of constituent power. Chapter 5 looks at the Canadian Supreme Court’s efforts to divine foundational principles out of Canadian history by omitting its constituent disorders and ancient legal traditions. Restoring these elements offers an explanation for the extraordinary overreach in the Court’s deliberations because they can account for disorderly trickiness as a component in law.The infuence of the Canadian Court’s efforts shows up later in the Scottish setting, and Chapter

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6 addresses events and planning around the 2014 Scottish independence referendum. Under the Scottish model, the moment of founding speech either disappears entirely or becomes part of regular legal proceedings. Continuity and clarity were the watchwords of government planning, although Scotland–Union politics resist reductionism, and the referendum turned in quite opaque results. As the only outlet for popular voice, the referendum turned into a “festival of democracy” that bore the hallmarks of constituent power despite offcial efforts to contain it. Chapter 7 returns to the theoretical level to suggest that declarations of independence have their roots in a zone of linguistic misrule where other forms of creative expression arise and acquire performative credentials only after the fact, which means that rather than legal or populist conditions, the potency of a declaratory founding is shaped by its capacity to symbolize and stabilize the relationship between the past and the future, a capacity that is showcased in speech forms like poetry or riddling.Thinking about constituent power as a riddle provides a way to avoid the impasse that paradox implies. The book’s conclusion then considers how insights from the four cases interrelate around the theme of disorder and argues that shifting from paradox to riddle creates an opening for fexibility between law and democracy. Finally, the chapter suggests ways that seeing declarations of independence as disorderly or poetic speech might alter the treatment of constituent power in political theory.

References Ackerman, Bruce. 1991. We the People.Vol. 1: Foundations. 3 vols. Cambridge, MA: Belknap Press. Arato, Andrew. 2000. “Carl Schmitt and the Revival of the Doctrine of the Constituent Power in the United States.” Cardozo Law Review 21 (5–6): 1739–1747. ———. 2017. The Adventures of the Constituent Power: Beyond Revolutions? Cambridge: Cambridge University Press. https://doi.org/10.1017/9781316411315. Arendt, Hannah. 1963. On Revolution. New York: Penguin Books. ———. 1971a. The Life of the Mind.Vol. 1,Thinking. 2 vols. New York: Harvest Books. ———. 1971b. The Life of the Mind.Vol. 2,Willing. 2 vols. New York: Harvest Books. Armitage, David. 2007. The Declaration of Independence: A Global History. Cambridge, MA: Harvard University Press. ———. 2013. Foundations of Modern International Thought. Cambridge: Cambridge University Press. Austin, J.L. 1975. How to Do Things with Words. Cambridge: Cambridge University Press. Butler, Judith. 1990. Gender Trouble: Feminism and the Subversion of Identity. New York: Routledge. ———. 1993. Bodies That Matter: On the Discursive Limits of “Sex.” New York: Routledge. ———. 2010. “Performative Agency.” Journal of Cultural Economy 3 (2): 147–161. Canovan, Margaret. 2005. The People. Cambridge: Polity. Carens, Joseph. 2000. Culture, Citizenship and Community:A Contextual Exploration of Justice as Evenhandedness. Oxford: Oxford University Press. Colón-Ríos, Joel I. 2012. Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power. New York: Routledge.

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———. 2020. Constituent Power and the Law. Oxford: Oxford University Press. Dallmayr, Fred. 2004.“Beyond Monologue: For a Comparative Political Theory.” Perspectives on Politics 2 (2): 249–257. Derrida, Jacques. 1986.“Declarations of Independence.” New Political Science 15: 7–15. https ://doi.org/10.1080/07393148608429608. ———. 1988. “Signature Event Context.” In Limited Inc, edited by Gerald Graff, 1–24. Evanston, IL: Northwestern University Press. ———. 1992.“Force of Law:The Mystical Foundation of Authority.” In Acts of Literature, edited by Derek Attridge, 3–67. New York: Routledge. Dyzenhaus, David. 2008. “The Politics of the Question of Constituent Power.” In The Paradox of Constitutionalism: Constituent Power and Constitutional Form, edited by Martin Loughlin and Neil Walker, 129–146. Oxford: Oxford University Press. FitzGibbon, John. 2013.“Citizens against Europe? Civil Society and Euroskeptic Protest in Ireland, the United Kingdom and Denmark.” Journal of Common Market Studies 51 (1): 105–121. https://doi.org/10.1111/j.1468-5965.2012.02302.x. Frank, Jason A. 2010. Constituent Moments: Enacting the People in Postrevolutionary America. Durham, NC: Duke University Press. ———. 2014. Publius and Political Imagination. Modernity and Political Thought. Lanham, MD: Rowman & Littlefeld. Fukuyama, Francis. 1989.“The End of History?” National Interest 15: 3–18. Greenens, Raf, Thomas Decreus, Femmy Thewissen, Antoon Braeckman and Maria Resmini. 2015. “The ‘Co-Originality’ of Constituent Power and Representation.” Constellations 22 (4): 514–522. https://doi.org/10.1111/1467-8675.12200. Honig, Bonnie. 1991.“Declarations of Independence:Arendt and Derrida on the Problem of Founding a Republic.” American Political Science Review 85 (1): 97–113. Jenco, Leigh. 2010. Making the Political: Founding and Action in the Political Theory of Zhang Shizhao. Cambridge: Cambridge University Press. Kalyvas,Andreas. 2008. Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt. Cambridge: Cambridge University Press. Lindahl, Hans. 2008. “Constituent Power and Refexive Identity: Towards an Ontology of Collective Selfhood.” In The Paradox of Constitutionalism: Constituent Power and Constitutional Form, edited by Martin Loughlin and Neil Walker, 9–24. Oxford: Oxford University Press. ———. 2015. “Possibility, Actuality, Rupture: Constituent Power and the Ontology of Change.” Constellations 22 (2): 163–174. https://doi.org/10.1111/1467-8675.12154. Lindsay,Adam. 2019.“‘Pretenders of a Vile and Unmanly Disposition’:Thomas Hobbes on the Fiction of Constituent Power.” Political Theory 47 (4): 475–499. https://doi.org/10 .1177/0090591718805979. Loughlin, Martin. 2008. “Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice.” In The Paradox of Constitutionalism: Constituent Power and Constitutional Form, edited by Martin Loughlin and Neil Walker, 27–48. Oxford: Oxford University Press. ———. 2014.“The Concept of Constituent Power.” European Journal of Political Theory 13 (2): 218–237. https://doi.org/10.1177/1474885113488766. Loughlin, Martin and Neil Walker, eds. 2007. The Paradox of Constitutionalism: Constituent Power and Constitutional Form. Oxford: Oxford University Press. ———. 2008. “Introduction.” In The Paradox of Constitutionalism: Constituent Power and Constitutional Form, edited by Martin Loughlin and Neil Walker, 1–8. Oxford: Oxford University Press.

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Lowrie, Michele. 2005.“Vergil and Founding Violence.” Cardozo Law Review 27 (2): 946– 976. https://doi.org/10.1002/9781444318050.ch27. Maier, Pauline. 1997. American Scripture: Making the Declaration of Independence. New York: Alfred A. Knopf. Matthes, Melissa. 2000. The Rape of Lucretia and the Founding of Republics. University Park, PA: Pennsylvania State University Press. Miller, David. 2008. “Political Philosophy for Earthlings.” In Political Theory: Methods and Approaches, edited by David Leopold and Marc Stears, 1–15. Oxford: Oxford University Press. Mudde, Cas. 2004. “The Populist Zeitgeist.” Government and Opposition 39 (4): 541–563. https://doi.org/10.1111/j.1477-7053.2004.00135.x. Negri, Antonio. 1999. Insurgencies. Minneapolis, MN: University of Minnesota Press. Ochoa Espejo, Paulina. 2011. The Time of Popular Sovereignty: Process and the Democratic State. University Park, PA: Pennsylvania State University Press. Oklopcic, Zoran. 2018. Beyond the People: Social Imaginary and Constituent Imagination. Oxford: Oxford University Press. Olson, Kevin. 2016. Imagined Sovereignties: The Power of the People and Other Myths of the Modern Age. Cambridge: Cambridge University Press. https://doi.org/10.1017/ CBO9781316286265. Roodujin, Martin and Tjitske Akkerman. 2017. “Flack Attacks: Populism and Left-Right Radicalism in Western Europe.” Party Politics 23 (3): 193–204. https://doi.org/10.1177 %2F1354068815596514. Russell, Peter H. 2004. Constitutional Odyssey.Toronto: University of Toronto Press. Schmitt, Carl. 1996. The Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of a Political Symbol.Translated by George Schwab.Westport, CT: Greenwood Press. ———. 2005. Political Theology. Translated by George Schwab. Chicago, IL: University of Chicago Press. Seery, John E. 1999.“Castles in the Air:An Essay on Political Foundations.” Political Theory 27 (4): 460–490. https://doi.org/10.1177%2F0090591799027004003. Sieyès, E.J. 1987.“What Is the Third Estate?” In The Old Regime and the French Revolution, edited by Keith M. Baker, John W. Boyer and Julius Kirshner, 7:154–179. University of Chicago Readings in Western Civilization. Chicago, IL: University of Chicago Press. Startin, Nick and André Krouwel. 2013. “Euroscepticism Re-Galvanized: The Consequences of the 2005 French and Dutch Rejections of the EU Constitution.” JCMS: Journal of Common Market Studies 51 (1): 65–84. https://doi.org/10.1111/j.1468 -5965.2012.02301.x. Tuck, Richard. 2015. The Sleeping Sovereign:The Invention of Modern Democracy. Cambridge: Cambridge University Press. https://doi.org/10.1017/CBO9781316417782. Tully, James. 2008. “The Imperialism of Modern Constitutional Democracy.” In The Paradox of Constitutionalism: Constituent Power and Constitutional Form, edited by Martin Loughlin and Neil Walker, 315–338. Oxford: Oxford University Press. ———. 2016. “Deparochializing Political Theory and Beyond: A Dialogue Approach to Comparative Political Thought.” Journal of World Philosophies 1 (1): 51–74. Wenman, Mark. 2013. Agonistic Democracy: Constituent Power in the Era of Globalization. Cambridge: Cambridge University Press.

2 DECLARATIONS OF INDEPENDENCE AS PROTO-LEGAL PERFORMATIVES

When Abbé Sieyès developed a theory of constituent power for the French Revolution, he did not have a performative model in mind – at least not performativity of the kind that has become familiar in contemporary theory. Under contemporary performative theory, the fact-based descriptive statements known as constatives that frame a performative utterance have become unstable until language is understood as a constantly evolving process of reiteration and citation. In contrast, for Sieyès, constituent power was a fact of the world, consisting of the men and marginally the women who made up the emerging middle class.As the productive backbone of French society, they formed the nation, the collective mass of interacting individuals that made daily life happen (Sieyès 1987, 157).This complex organ lay at the center of political life because it persisted when governments faltered, providing an inexhaustible reservoir of political authority. In other words, “the nation,” or as it is more often termed today “the people,” was key to the renewal of political authority in Sieyès’ account because the people were the ultimate constative, lending stability that survives all. Contemporary debates on constituent power retain Sieyès’ language but rarely assume that a stable and identifable source of authority lies in the people. The constituent power found in declarations of independence is now thought of in performative terms – a sui generis or refexive maneuver that draws authority from its own operation. The capacity of performatives to deliver even under conditions of uncertainty makes them especially well adapted to the circumstances of founding.When both the identity of the people and the source of their authority are lacking, performativity provides an account of how subjectless action and retroactive validation can make something happen all the same. Since the work of constituent power is to supersede the old order as a means to manifest the new, and its legitimacy rests on not being a byproduct of existing power relations,

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something that decouples speech from the limits of its immediate surroundings looks tailor-made. The diffculty is that while constituent power imagines an operation that transcends existing power structures, performatives never really escape their context. There is always something against which, or upon which, performative speech operates. Some murkiness may be unavoidable in all speech, but performatives still require a prevailing order against which an utterance can be situated. Even in Derrida’s account of the American Declaration, where he suggests it generated the conditions of its own validation, performativity never implies pure selfcreation (1986). Alert to the potential for misreading performative power, Judith Butler cautions against setting up a “magical view of the performative” (1977, 21) as something unconstrained and unconditioned. Butler’s caution poses an important question: If the work of constituent power is not to cite creatively or play off prevailing conventions but to transform authority entirely, why is performative speech taken to be equipped for the challenge? The question is important not only because it concerns the primary explanation for founding speech in the modern age but also because performativity can lend itself to dangerous fantasies of self-suffciency, obscuring the violence and power dynamics surrounding moments of origin. Arendt’s account of the American founding as a self-validating exercise in facts and promises is a case in point. Derrida’s fabulism restores the uncertainty that Arendt barely acknowledged but at the price of permanent instability. Still, if performativity is not a good ft with founding speech, it’s not entirely clear what else could account for the operation, making it an especially diffcult association to challenge. Could it be that constituent power is thought of as a performative by default because it seems to be the best choice among otherwise limited alternatives? This is not an especially strong argument in favor of the association, but it does explain its staying power.The discussion that follows will identify some of the compromises required in maintaining this association, which include the fact that theory fnds itself entangled in the process of validation it sets out to understand. Following a review of Arendt and Derrida on the American Declaration, the discussion considers how speech act theory, frst developed by J.L.Austin, quickly transformed into the broader category of performativity theory in social and political life.This broader account provided grounds for seeing founding as a selfgenerating or self-validating operation, yet the constative conditions of founding prove inescapable. For this reason the discussion raises four considerations about the performativity of founding speech. First, it addresses the “magic words” problem that Judith Butler repeatedly identifes. While Butler suggests there is no epistemic anchor to performative action, this is not because there is no anchor at all; it is only that we are handicapped when it comes to describing it. It is a mistake to assume this implies that emptiness or absence precedes performativity. Second, there is an important difference between making something happen and making it valid. It’s not clear that performative foundings that deliver the former

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have the capacity for the latter.Third, great emphasis is put on retroactivity as part of the founding operation, but a founding moment, viewed in retrospect, is a very different animal from the one experienced live because retroactivity involves a viewpoint that detaches it from the troublingly unstable moment of beginning. Fourth and fnally, if founding performatives work by projecting the appearance of self-suffciency, then any theory that provides an account of how such refexivity works is implicated in advancing the operation being described. The conclusion arrived at is that the association of performativity with founding speech is premature. Its intuitive appeal looks suspect on closer examination because theory itself forms part of the performative closure that generates the appearance of self-suffcient and self-mandating authority. The discussion concludes by suggesting that in light of the self-soothing qualities of performative theory, the understanding of founding speech would be better served by looking at things that unsettle and disturb. When the performative circuit remains open, as in failed or incomplete foundings, it provides a picture of the operation before retroactivity generates theoretical closure on the question. This may provide a way to explore the chaotic and creative forces of language that lie beyond the performative fable.

Beginning in Speech Hannah Arendt was skeptical of efforts to base founding on the “natural force of the multitude” as this merely substitutes a form of “strength and violence in their pre-political state” for what is missing. Because violence is always inadequate to the requirements of politics, the effect on politics is “abortive” (Arendt 1963, 173). Instead,Arendt’s insistence that the ending of an old regime must be distinguished from the beginning of the new, and her claim that in the modern era the framing of a constitution is “identical” with founding, seems to position lawmaking as the central founding activity. But she also says that constitution-making loses its signifcance once it becomes the “favorite pastime” of “experts and politicians.” Thus for Arendt, legal formalism marked the end of the American founding process that opened with the Declaration of Independence. From the point of view of documentation, the Declaration outstrips the Constitution, and she says that its preamble provided “the sole authority” for the constitutionalism that followed.To be clear, it’s not constitutionalism that Arendt rejects, as the period she celebrates was marked by widespread discussion of constitutional questions. But once the process moves from the popular engagement that surrounded the Declaration and early constitution-making to become settled law in expert hands, the politics she admires peters out (Arendt 1963, 116–17, 185). The rapid movement from the Declaration to the constitutional union is a distinguishing feature of the American founding for Arendt, which she says experienced no gap or hiatus between revolution and constitution. Founding presented Americans with two problems.The problem of political power demanded

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legitimacy. This was solved by the “world-building” capacity for promises and compacts that characterized colonial society and that enabled Americans to focus on facts, practice, and events over tradition or theory.1 The second problem America faced was that of higher law. Higher law demanded validity, conventionally sourced in an absolute like God or rationalism.That problem was solved by making the Declaration, the frst moment of constitution-making in Arendt’s account, the object of “blind and indiscriminating” worship (1963, 132, 160–7, 190). Arendt calls this “blind worship” the “genius” or “great good fortune” that saved the foundation. At other points Arendt suggests the worship was unnecessary because the act of beginning is absolute unto itself. As an absolute, beginning is of an “entirely different” order than God or reason because it “contains a measure of complete arbitrariness.”Whereas the central problem for validity is the creation of stability, beginning entails disruption and disorientation. Arendt explains that beginning has “nothing whatsoever to hold on to; it is as though it came out of nowhere in either time or space.” It’s as if the beginner “had abolished the sequence of temporality itself, as though the actors were thrown out of the temporal order and its continuity.” This makes for a strange combination. Beginning is suffcient unto itself, yet has none of the inherent stability that validity requires.These tensions are never entirely resolved in Arendt’s account except to say that beginning saves itself from its own arbitrariness through the beginner who “lays down the law of action” (1963, 190–1, 198, 205). Origins appear even more contorted in the hands of Jacques Derrida. He associates founding with performative speech but adds that making it stick takes something extra. For Derrida, the central question of “who signs?” is not so much faced as fudged in the American case. Addressed directly, it threatens to unravel the whole project, creating a “chain reaction” of doubt because there is no American “united states,” no American people, and no democratic political authority empowered to speak on their behalf prior to the document’s appearance. Instead,“undecidability” between the performative and constative elements of signing creates an “indispensable confusion” that is resolved in what he repeatedly calls a “coup” or “game.” A divine signature must be imagined into place in the Declaration, which in turn leverages an imagined American nation into being. Once Americans fnd themselves in a new state, they can look back on the document as a legitimating moment of origin. But it’s only in retrospect that the source of the signature becomes available.This is what Derrida means by “fabulous retroactivity,” and it suggests that all that is needed on the Declaration are “countersignatures” against a higher authority like God or Nature. This “fable” halts the spiral of doubt by positing a “last instance” (1986, 8–12). It appears that Arendt’s absolute has become Derrida’s fable, and the special status of Arendtian beginning has been downgraded to a confdence game. Bonnie Honig believes that Arendt attempts to avoid the irrationalism Derrida grasps because she “seeks in the American declaration … a moment of perfect

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legitimacy.” Her longing to evade necessity, Honig says, leads her to posit the founding as pure performative, one that “does not require the blessing of a constative” to work. But this fails because all performatives need something to stabilize them. In effect, Honig claims that Arendt falls for the “magic words” fallacy of performative speech, thinking that the extraordinary conditions of beginning did not require constative conditions in order to unfold. In doing so, Arendt set up a dangerous ideal of American authority.2 Since any effort to identify a perfect performative “erases the violence and ambiguity that marked the original act,” Honig advises that we resist Arendt’s “fable” and “refuse its claim to irresistibility” (1991, 101, 106–8, 111). Honig’s critique reveals the delicate balance involved in applying a performative framework to foundings. Too much emphasis on the creative autonomy of performativity and an analysis falls on the wrong side of the Arendtian model, nursing illusions of purity and obscuring the liabilities of authority.Too little, and political beginning shows up as little more than violence and deception. Derrida disrupts performative purity by using the language of fables and imposture to foreground the role of illusion in the American founding. But there is creativity at work in this process too. He cites temporal inversion as the mode of causality, for the same reason that something similar appears in Arendt’s work:The “inadequation to itself of a present” (Honig 1991, 107). Something is always deferred or incomplete in these instances, and the gap can only be flled imaginatively by thinking about the past and the future. If the present is never complete unto itself – and Arendt did not think that the timeline could be escaped in this manner – then while beginnings may well appear in speech, they do not arrive intact. But while it exposes faws in the performative model that Arendt underplayed, Honig’s critique offers no alternative, leaving it unclear what provides founding energy besides deceit. Turning back to performativity is one way to retrace the steps in this argument.

Performativity and Founding Speech Along with J.L. Austin’s pioneering work, two other fgures shaped the development of performativity as a speech category with special political signifcance: Jacques Derrida and Judith Butler. Together these three trace an arc of development that refects the evolving understanding of performativity as a creative political force. In his original account Austin delineated a new category of speech, one that wasn’t describing the world but acting upon it. In Austin’s terms performative utterances were an action-in-speech, where the action is achieved in and through the utterance itself. Classic examples include taking wedding vows, christening a ship, or a judge fnding a defendant guilty in a trial. In each case it was not true that the bride was married, the ship was named, or the defendant was guilty before the key utterance took place, and it was true after.That is, providing that

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the appropriate conventions were followed. If an actor played the bride, the shipnamer was just kidding about, or the judge was bribed, the performative force of the utterance drains away and it becomes a “misfre.” In other words, Austin was primarily concerned with performative utterances that took place within known and stable environments that could be reliably described by constative statements. He tied their operation to the presence and exercise of valid and recognized authority, and he carefully excluded anything where questions of sincerity and intention disrupt the bright line he wanted to maintain between an actor/action and their context of authorization. In particular, Austin categorized poetry, jokes, or acting in a play as cases where language was used “intelligibly” but “not seriously” (1975, 9, 15, 36, 22). Austin’s exclusion turned out to signal a potent dimension of performative speech, and later thinkers developed the category in a way that transformed the theory profoundly.Austin knew that performative speech does not necessarily fail under murky conditions, but it does become disordered and unpredictable to the point of nonsense. Disorder arising from questions around the sincerity or intent of an act can be further compounded by issues of reception and the fuid meaning of convention. Because questions around sincerity, reception, and convention attend all speech to some degree, the disorder that Austin identifed turns out to haunt all language. As noted in Chapter 1, Derrida recognized early on that Austin was using poetry to mark out a hazardous area of ambiguity, a “ditch” that surrounds all language and into which speech can tumble at any point if it strays too far from convention.Austin’s exclusions minimized this hazard without addressing it by marking out a communicative safe zone beyond which performatives become disordered because they lack seriousness and consequently operate through “structural parasitism.” Derrida maintained that this “risk” is a “condition of possibility” for all language (1988, 17). For Derrida, all performative utterances suffer from some degree of instability. First, because conventional authority is incomplete, being distributed over time between the past, present, and future, with all the shifting meanings that involves. Second, because intention is not the governing factor that Austin supposed. We can only signal intention in conventional ways, and convention brings with it the possibility of insincerity.The singularity and uniqueness of any speaker mean the inner life of the heart remains inaccessible to language, in some degree, and that represents a wild card in any speech situation. Derrida’s discussion of the American Declaration showed how the speech that Austin excluded could release extraordinary transformative potential not in spite of, but because of its ambiguity. The answer to the question “who signs?” can only be given through fantastical measures that work on the potential for confusion that Austin aimed to avoid (Austin 1988, 13–21).To get to that point, however, people must come to believe that signature is possible (Derrida 1986, 10). In effect, the American Declaration works by pulling off a brilliant hoax, turning ambiguous constatives into performative bedrock.

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Judith Butler extended Derrida’s critique to argue that the actor/speaker in a performative wasn’t fully accounted for either. Butler took issue with feminist efforts to identify an authentic experience of sexuality. She warned the effort rested on “foundationalist fctions” that imagine a time “before” gender was corrupted by social pathologies (1990, 4). It’s a fction because concepts of sexuality are conditioned by the feld of representation within which they appear. There is no getting back to some authentic, unadulterated form of the subject, she explained, as “there is no position outside this feld” accessible in speech (1990, 7, 40). Efforts to escape gendered politics into something prior fail because constraint is “built into what language constitutes as the imaginable domain.”When a feminist, or any theorist, goes looking for the authentic ground of the subject, whatever they fnd, whatever they suppose to be “most in the raw,” turns out to be “always already ‘cooked.’” Even the identity of the actor in terms of raw physicality cannot be accessed in pure form. As Butler put it, there is “no epistemic anchor” to the experiences we process in language, and so we need to “cure ourselves of the illusion of a true body beyond the law” (1990, 12, 51, 127). One of Butler’s main goals in exploring performativity involved showing that speech could be interrupted in its effects and that it never has complete authority or effcacy. Efforts to ban hate speech in law, she argued, were based on a false model of language where hate speech caused an immediate and predictable injury (1977). But language never has this kind of effect because it is mediated through the familiar Austinian issues of reception, sincerity, and convention. Hate speech could therefore be resisted in multiple ways short of legislation for the same reason that gender identity can be parodied and destabilized. Speech always involves the option to withdraw authorizing effects, pulling power away from where it was previously invested. Language is always constituting present authority, and that makes it an instrument for reconstituting the social and political world as well. Once performativity is seen as a way to unsettle prevailing authority and manifest new forms of life, the groundwork is in place for a special connection between performativity and founding speech. Speech operates as a greater force than the conventional structures that authorize it, greater even than the subject-identities that voice it, but that does not mean performativity can be applied at will.Austin, Derrida, and Butler agree on performativity as the encounter between a speaker’s utterance and an ongoing world that frames the possibilities for action and meaning, even if both the speaker and the world prove endlessly fuid. In other words, a performative is not an action in speech if this is understood as a single-handed, voluntarist operation. This much of Austin’s performativity has remained constant throughout subsequent developments.The world sets the scene into which action appears, and worldly response shapes how things turn out. It’s just become clear with time that the world Austin had in mind can only be known through the representational feld of language, setting up a hall of mirrors effect. This feld is malleable but inescapable. As Butler put it, the idea of pure voluntarism “compels us to believe in the magical nature of the performative” (2015, 175).

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Even naming – the originary creative process in language – is not suffcient for autogenesis (Butler 1990, 36). Instead, every performative operates in relationship to some set of conditions, however diffuse, that make possible and complete the performative. Derrida’s fabulist Declaration represents one example of the constative setting for performative action. By summoning up real-world confusion around questions of authorization in the document, it set the stage for a performative boomerang effect that delivered the needed endorsement. Derrida suggests that a pared-down version of the Declaration would also suffce: A document containing nothing more than Jefferson’s name under a map of America (1986, 13). Derrida’s minimalist Declaration does not mean Jefferson single-handedly summoned America into being. It shows how Jefferson stands behind the Declaration via the conventions of names and geography. Derrida’s minimalism suggests that performative founding cannot be pared down beyond this point. Although he frames founding as self-authenticating fraud, Derrida’s editing effort shows how the process arrives at something irreducible – the source and location of speech, which in the case of the Declaration meant both Jefferson the man and the history and landscape of America. Or, as Butler puts it, bodies and their location remain the “precondition” of all claims-making (2015, 182).3

Mastery and Ruin: The Derrida–Searle Debate The Austin-Derrida-Butler arc traces the evolution of performative theory as a constituent force. One of the more unusual exchanges to emerge from this development involved a debate between Derrida and John Searle, who worked to extend Austin’s unfnished project into an account of performatives as limited declaratory events. Both thinkers agree that context and convention are critical for making speech meaningful, so neither is guilty of the magical view of the performative that concerns Butler. But they differed on how reliable the results of a performative speech act could be.At the heart of the disagreement lay the importance of intentionality and the timing that surrounds the speech event. Searle used these features to mark the performative event as a special way of constituting the world. Derrida felt they implied something incomplete about all speech.The tension marks out polar positions in performative theory. On one view, performatives serve to structure and limit communication, and on the other, they signal the haunting ruin of all high aspirations. Searle responded to Derrida’s account of Austinian performativity by insisting Derrida had catastrophically “misunderstood and misstated” Austin’s work, saying “Derrida’s Austin is unrecognizable.” Although he admitted that he, Searle, might have misunderstood Derrida in turn (1977, 204, 198). Searle argued that Derrida had misconstrued both what language like jokes and poetry implied for Austin and what reiterability or citation indicated about language in general. As it turns out, Searle had misunderstood Derrida’s argument on iterability. It was a

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particularly damning error because it pointed to the overall diffculties in meaning and understanding that can develop when language moves between different contexts and different people. Part of what makes certain uses of language in poetry and jokes “parasitic” and unreliable for Austin is that these statements are made in a context where any immediate effect is disordered by misattuned intentions, basically, by the failure of the speaker to mean what they say. Often an audience knows not to take such things seriously, something evident in the case of theatre, for instance.There is an intention in these circumstances, but as Searle put it, the intent was to mention a statement or utterance, but not to use it in a normal sense.The difference between mentioning something via citation and its conventional use in everyday ordinary language was simple enough in Searle’s eyes. One logically depended on the seriousness of the other, so he dismissed the concerns Derrida raised that citation could disorder reliable intentions. Iterability was also dismissed because Searle took Derrida’s point to be about the way writing survived in the absence of its speaker. Searle saw no diffculty in having a speaker’s intention live on in writing because the relationship could be explained using the token/type distinction. All speech acts were singular “token” events, and some kind of commonality carried through all the different settings and instances where a token was reiterated.Thus intention did not “lay behind” an utterance; it was in the speech act itself and continued as a constituent element of it even in the artifact of writing. Because it was embedded in certain kinds of speech, intention “may be more or less perfectly realized by the words uttered” and that pairing survived, regardless of the subsequent status of the speaker. The upshot, Searle felt, was that Derrida had nothing to object to in Austinian performativity. As he put it, “Speakers and hearers are masters of the sets of rules we call the rules of language” and that mastery imprints a stable and suffcient structure on any speech act as an individual event (1977, 200, 202, 208). The contrast could hardly be starker. For Derrida, the potential for modifcation in the citation of language isn’t just what disables the “mastery” of speech; it is the condition of possibility for any successful performative, which must always be some kind of citation as we repurpose language to our unique needs. Searle, in contrast, worried about the kind of expansion Derrida’s theory suggested because it meant that without specifcation, all speech would eventually fall under the performative category leading to an absurd level of conceptual overuse. In an effort to meaningfully preserve the force of action Austin was trying to identify, Searle tried to distinguish formulations in language by how they met performative requirements. For instance, he concluded that a declaration is a special kind of speech act because if successful, it “changes the world.” Speech acts like a declaration of war or the “we pledge our lives” in the American Declaration have, Searle said, a “self-guaranteeing character,” not because they are “self-referential” and testify to the intention of the speaker, rather because the terms surrounding its

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operation are completely uncompromising (1989, 541–4).The declaratory act can only be entirely serious or a complete failure. No middle ground exists. The price of success in performativity, for Searle, is a closely constrained setting. It must include an institutional order that supports the utterance, a speaker empowered to deliver it, a convention around the speech used, and the serious intent of the speaker. The only exception to these conditions was God, whose performativity is absolute. Humans have merely “quasi-magical power” to bring about change in the world via speech, and that power is generated through “human agreement” (Searle 1989, 548–9). Searle went on to distinguish between the linguistic and extra-linguistic dimensions of the declaration. Linguistic declarations were those which created a speech act such as an order, a promise, or a statement. For these expressions, there is a self-referentiality implied in the original terms that made serious intention suffcient for performance. Because less is required in terms of context, such utterances are self-executing. Extra-linguistic declarations have a wider reach and create things like marriages or war. Here, institutional and conventional conditions are critical to success. This ensures a certain limitation on performativity, Searle explains, because “only a very tiny number of changes can be brought about in the world” using this latter formulation (1989, 550, 554). Searle’s theory creates a divide between the personal, self-committing performative and the social-institutional performative of a public declaration. But the emphasis in both instances is on the clear rules and structure that inform the effort, and change is achieved through the mastery of language. Derrida was less interested in the mastery of language that Searle described than in the ways meaning was reconstituted.The absences he had in mind not only involved the speaker and their serious intent, he believed a lack of certainty plagued all structures that Searle relied upon. The fact that we reuse and repurpose terms every time we begin a new statement means speech is parasitic all the way down.The force that is neatly channeled in Searle’s account thus becomes uncalibrated in Derrida’s. There are no pure performatives in either personal or public speech because everything needed for either operation “will never be through and through present to itself and its content” (Derrida 1988, 18). The implications of this gap appear most pressing at a founding moment where it exposes law’s inability to render justice fully present. Even though justice is conceptualized as having its own mystically normative force, some gap in authority always ends up being closed by force or violence, Derrida says, even “from its frst word.”A successful founding is “a promise” that produces “interpretative models” that in turn “give sense, necessity and above all legitimacy” to the “performative violence” required for self-legitimation. Founding thus rests on a coup de force that is impervious to invalidation (Derrida 1988, 10, 13, 36–8).The “differential force” of founding performativity lies in the gap between the dominant interpretation of a successful founding and what can be questioned about that event after the fact. Any interpretation renders certain people and certain points of view silent, so the birth of law means “silence is walled up in the violent structure of the founding

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act,” leaving something “buried, dissimulated, repressed” by these foundations. What is silenced always threatens to reappear, and law is always closing the interpretational gap to secure the necessary performative force.The gap thus remains “lodged” in the original operation as a “ghost” that stalks efforts at authority with their own ruin. Ultimately, while justice and democracy can be imagined in a future to come, because it operates in the imperfect present Derrida concludes,“a performative cannot be just” (1988, 7–8, 14, 23–4, 27). While it may have retroactive dimensions, the founding performative is inadequate to create full justice because right and violence cannot be separated, and law is just a way to limit one mode of violence with another. Perfect justice can be anticipated but not delivered because a faw emerges in the movement “from presence to representation” which provides an opening for all the problems of seriousness and citability.The only hope Derrida offers is that the founding process is repeatable. It’s “easier to criticize the violence that founds” he explains because the absence of proper authorization makes it appear “savage” (Derrida 1988, 40, 47). So while Searle envisions an operation that is unconvincingly stable and casts speech acts as a clear and settled formula, Derrida’s performative never entirely delivers and refects law and founding as incomplete and inadequate.

Magic Words: How Performatives Became a Fable If Austin, Searle, Derrida, and Butler agree that some constative element remains a feature of how performatives work, how does the concept then become associated with the self-authorizing capacities of constituent power? It may have to do with the way Austin articulated his original account of the concept. Austin’s model sets up a divide between speech and its worldly conditions.The performative side of the equation is associated with initiatory, subject-driven action that confronts a world of authorizing or constraining forces signifed under the constative label. In short, the performative utterance is associated with an exercise of will and intention within a world of restrictions.Viewed from the performative side of the equation, everything looks possible, in theory.Viewed from the constative side, everything looks orderly and rule-bound. But move beyond the classic examples Austin proposed into the gray zone of irregularity that Derrida and Butler explore, and worldly constatives pale against the power of performativity. Since the inherent performativity of all language ultimately trumps the apparent fxity of any constative, the constative-performative dynamic that started as a complementary and mutually supportive process in Austin’s theory ends as a one-sided rout, with performativity equipped to drive any “fact” into redundancy. Expanding the concept of performativity brings an important form of political action into a clearer view, but from the outset the concept posed the risk that the capacities and qualities of its power would be overstated. Butler warns against the search for purity in either intentions or their setting, as both are conditioned by the representational feld. But an account of

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performativity that cannot be clearly grounded in worldly fundamentals, and where the subject is a byproduct of action rather than its progenitor, shifts the locus of action decidedly toward the performative utterance. As the Derrida– Searle debate illustrates, performative speech is not well positioned to carry that weight, and what starts as masterly action ends as a ghostly fable. In the absence of performative certainty, the idea of speech that breaks free of worldly constraints takes on a seductive quality, however much Butler cautions against it. Butler’s work showed that there is always some degree of play in the use of language, where play suggests both a sense of looseness or instability, as well as the potential for parody in the form of ironic or insincere playacting. She celebrates this quality because it creates room for resistance when it comes to issues like gender and racial identity. Her description of subjectless action, combined with her insistence that there is “no before” from the point of view of language, sets up performativity to become a vehicle for subjectless, convention-free action. But the claim that there is no epistemic anchor from the point of view of language is not the same as saying there is no anchor at all. Some element of constraint is “built into what language constitutes” (Butler 1990, 12). Parody is defant, but it is not groundless; it plays off what is already in circulation. Butler criticizes the search for some kind of purity that antedates the corrupting forces of society because that exploration involves a projection from the present world into an ideal one. But like everything else humans talk about, Butler’s account also takes place within the feld of representation. She too can only talk about the “before” that isn’t there by reference to what is understood as coming after. Nothing has slipped the grip of language in this cycle, no matter how loose she envisions it becoming. No matter how circular the process, performativity remains dependent on the construction and repetition of present subjectivity and convention. Even when subjectivity is thought of as an absence, that conception is only possible because something else is thought of as present. It would be wrong to conclude that nothing exists before language comes along to name it. It is simply that we cannot say what was there.We lack the resources to address this question from the vantage point of the speech we have. And if we cannot say what exists before language, we cannot say that space is entirely empty either.The claim that founding speech is self-generating rests on the belief that either there is a transcendent national people behind it – a claim that looks increasingly suspect – or that there is no collective subject until it performatively self-manifests. But why conclude that founding speech is self-generating if we cannot address any prior absence suffciently to attest to its emptiness? Performatives have no power to escape or exceed the world in which they operate because language, as Butler puts it,“works neither magically nor inexorably.”Any effort for innovation in language must progress against serious headwind because the effort to introduce change is “an arduous task” that requires “strategy” and proceeds under “duress” (Butler 1990, 158, 190, 198). Such efforts may be

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distributed across rounds of citation and parody, but they do not supersede these conditions even retroactively.They are “rule-bounded” operations that take place in “already socially established” environments.While not “determined by the rules through which it is generated.” Butler maintains that for performativity,“all signifcation is within the orbit of the compulsion to repeat.”Agency appears because it is possible to vary the repetition, but no matter how invented they are, neither the subject nor their action is invented from whole cloth. Performativity, even at its most radical, involves “taking up of the tools where they lie, where the very ‘taking up’ is enabled by the tool lying there” (Butler 1990, 198, 191).

Ventriloquizing the Demos Any analysis of founding speech must avoid the magic words fallacy that Butler identifes without being entirely prosaic, since something like Derrida’s fable must be available to countersign the operation.As the conditions of a properly authorized speaker are absent at founding, under strict Austinian terms, every attempt at political founding should really be a misfre. But even a founding performative that is ambiguous to the point of counterfeit can still work if it fnds popular support.That means undecidability isn’t the whole story either. Honig blames Arendt for resisting undecidability in the pursuit of “perfect legitimacy” (1991, 106). But reaching some judgment on what happened is part of founding too.Where Honig catches Arendt at fault is in the idea that founding speech is self-sustaining in its own moment. Derrida’s “fabulous retroactivity” (1986, 10) can sound very like Arendt’s inbuilt capacity for beginning, but he shows that what sustains the success of the American Declaration has a lot to do with already existing beliefs around God, political authority, maps, etc. So long as these concepts are malleable enough to trigger willingness for retroactive authorization, the performative hoax can unfold. So how does convention become innovation under a performative account? Hans Lindahl suggests that the conceptual standoff is broken by “someone who seizes the initiative,” disrupting time in the process (2015, 167). Jason Frank cites James Madison’s view that founding starts with “informal and unauthorized propositions” by patriots and suggests that making them palatable requires something familiar or habitual, which is repurposed through an “artistic and transformative act.” Frank considers this a performative exercise but recognizes the spiral of authorization issues this invites (2007, 110, 116). Frank describes America’s constitutional founding as creating the conditions for its own validation through a combination of performative daring and “retrospective authorization.” And he describes Madison’s propositions as blurring the line between prophecy and charlatanism, perhaps even becoming a form of ventriloquism that appropriates the popular voice (2007, 103, 106, 110). If so, then founding speech faces a serious credibility issue.Yet it’s not clear why seizing the initiative in a performative coup de grâce provides a better solution than Sieyès nation or Schmitt’s sovereign

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decision-maker. By insisting on some element of retroactive exceptionalism, such solutions may stall or delay the spiral of regress around authorship, but they do not avert it. The insuffciency of the performative comes back into view once the process is parsed out. Madison never speaks as if the propositions he described could be self-sustaining; instead he emphasizes terms like “duty,” patriotism, and even gendered norms like “manly confdence” as necessary resources for the effort (Madison 2009, 202–4).These concepts and their related social practices are not creations of the constitutional effort, but they provide a normative and practical background without which Madison’s performative efforts would be fruitless. The uptake on Madison’s propositions is therefore not entirely conditioned by disorientation or undecidability. Rather, as Frank explains, the operation involved the “unconcealing of latent popular dispositions” (2007, 113). Because the dispositions it addresses are already “latent,” this means that performative speech does not create all the conditions it needs to succeed.4 Instead, conventions act as a springboard for the creative effort. Even if it works, retroactivity still leaves the question of why audacity or imposture should be seen as delivering beginning. Something subtle must be at work in American founding to transfgure ventriloquism into validation.5 The process Frank describes shifts the grounds on which performativity unfolds by cultivating democratic expectations as a newly minted condition for certifying the founding, conditions generated out of old beliefs. Putting this in terms of Derrida’s fable, it suggests that the American founding not only made God its countersignatory, it progressively erases the gendered, moralistic countersignature in place at the outset as part of an ongoing effort to affrm its credentials. Only in this way can the appearance of democratic autogenesis be maintained. But does an ongoing effort to project, establish, and then live up to new conditions for authority really prove adequate to the task? Or is there always something suspect and imperfect in the self-referential qualities of any arrangement arrived at in this way? Moreover, not everything that is self-initiating has the character of validity, unless validity is understood as little more than popular acceptance. For instance, if undecidability and retroactivity are operant features of performative founding, the process could be self-sustaining in the manner that a hoax is self-sustaining.A hoax does not work by creating the conditions for its validation. It works by convincing an audience to disregard their current understanding of the world in favor of an alternative one.What results is not necessarily valid, even if the targets of the imposture embrace the new account of the world and prefer it to their old one. This makes the action successful rather than warranted.The new conditions that emerge cannot mitigate the vulnerability and possible injury involved in arriving there or purge the hoax of its troubled origins. If it means validity can be secured by abuse as well as by persuasion, performative imposture poses a problem for the normative coherence of any subsequent constitutional efforts.

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Fabulous Retroactivity Constituent power cannot be explained as self-suffcient because it doesn’t have everything it needs at the critical moment of origin when instability surrounding the terms of validation is at maximum. Derridian retroactivity looks self-suffcient because it is viewed from the perspective of history when its performative gambles have been cashed out as new constative realities, including new terms of validation. Awareness of the distributed force of the founding performative does emerge in discussions of constituent power, but the association with selfsuffciency remains hard to shake so that claims about the insuffciency and the self-suffciency of the process often go hand in hand. Take, for instance, Hans Lindahl’s account of founding as both performatively incomplete and self-sustaining in its operation. Lindahl draws on Derrida’s claims about retroactive founding to explore emerging European constitutionalism as an instance of constituent power. Although he characterizes constituent power as a “self-mandating act” and a collective “act of self-attribution” (2003, 441; 2007, 491), he has in mind an account of founding that distributes the originating event across different spheres of action and different moments in time. Lindahl calls political founding a form of “performative circularity” where the component elements of action are spread out across time and the self-refexivity is not instantaneous. He thinks two elements combine to give constituent power its performative force. First, as with Madison’s unauthorized propositions, someone begins the process by seizing the initiative. Second, they ground this operation in a collective subject via the retrojection of communal identity into the past (Lindahl 2007, 492; 2003, 441). Lindahl’s breakdown is critical because it creates room for the performative effort to fail.Those who seize the initiative drive the performative effort, but they are not, at that instant, representing an extant community. Because at the very frst moment of the initiative, their claim has not yet been heard, let alone understood or embraced by the community at large. There is also no guarantee that their action will ever reach the point of self-mandating because the performative circuit closes only if the broader community, the audience for which the performative operation is initiated, signs on to that operation by attributing the action to a newly imagined collective self. So what looks like self-mandating performativity when seen from the point of view of history is experienced by its participants as a kind of “wager,” a “risky endeavor” that is “sometimes stillborn.”The goal of constituent power is certainly to be self-mandating, but as Lindahl concludes in the European case, even the European Court of Justice “cannot achieve this on its own” (2003, 400–1, 442). When the effort to retroject a community identity fails, as was arguably the case with referendums on the European treaties, Lindahl suggests the outcome is a return to democratic ambiguity, being the conditions out of which performative politics arises.Where Derrida and Honig see representation as an opportunity

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for fraud or fable to cajole a population into endorsement, Lindahl sees risk and indeterminacy that entails “doubt, disorientation, crisis and disintegration” (2007, 499). Lindahl’s performative is not simply undecidable at the point of origin, it remains insuffcient throughout, and any resulting community subsists in a “mode of questionability” (2008, 23). Since there is no knowing whether the retrospective representation will be embraced, the “self-mandating” label can only describe successful performatives after the fact. Successful performatives take on the form of collective self-attribution, but they don’t start that way, and that tension makes the entire operation fundamentally strange (Lindahl 2015). If founding performatives were self-validating in an inherent and immediate way, there would never be any failures to think about, and risk and indeterminacy would vanish. But Lindahl makes clear that failure is an option. Thus it is only possible to characterize founding performatives as self-mandating by omitting those foundings that fail. The tendency to focus on successful foundings is understandable since they are the ones with long-term impact. But considering only those foundings that resemble the Derridian model produces an inadequate view of the process.The elision between the grand universe of founding attempts and the smaller universe of historical success may explain how the idea of selfsuffciency became attached to founding declarations over time, as successes accumulated from the point of view of history.This brings us back to the critical role of time in how constituent power is understood. Lindahl’s account shows that the performative force of constituent power puts three dimensions of time into play simultaneously: A bold action in the present seeks to recondition the past but cannot be successful until the future, leaving all three dimensions incomplete until the circuit is closed. But since closure must take place on the basis of projections and representations, this temporal distribution of powers ensures a “radical absence” remains part of the entire operation going forward.The collective subject, the source of constituent actions, is ethereal because its unity or identity is only normative, not actual (Lindahl 2003, 439; 2008, 12).This seems about as far from meaningfully self-suffcient as one can get. At this point Sieyès’ nation, as the tangible anchor of constituent power, has vanished and in its place is a much murkier force that relies at least in part on make-believe and projection. There is no immediacy, only attribution in this founding operation, and constituent power is not the action of a subject; it is action “in the name of a subject” that is never entirely available to act on its own behalf. So rather than revealing a straightforwardly self-mandating power, performative circularity reveals the fragility of the entire effort and points at “a fundamental passivity at the heart of political community” (Lindahl 2008, 23; 2007, 495).The collective is not a beginner in the purest Arendtian sense because it can “only act by reacting” and its constituent capacity “comes second not frst.”The same passivity is “nested” in any exercise of constituent power (Lindahl 2008, 21; 2007, 495). Since the activity “only constitutes if taken up again and carried forward” (Lindahl 2007, 498), any would-be founders and their respective

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communities remain helpless before the deciding future and the questions that future subjects may raise.

Theory Gets in on the Act If Arendt erred in concentrating the founding moment into one perfect performative, does the distribution of that process across time or between different spheres of life alleviate the problem? Is a distributed and permanently questionable founding really all that different if it still arrives at a point where it supplies its own conditions? When theory embraces the idea of a self-authorizing declaration of independence, it allows the idea of performativity to smooth over otherwise forbidding terrain. But there is no such easy path in language. Performative founding relies on cultivating a fable that obscures the relationship of a political moment to its environment.The fable is that the performative escapes its constative environment suffciently to become its own cause.This fable of “fabulous retroactivity” is precisely the kind of thinking Derrida suggests must take place for the performative dimension of the founding to succeed, and in this regard at least, political theory has reason to embrace the account. But doing so means theory becomes implicated in advancing the fable, along with all its consequences.Taking some position on the question of origins is unavoidable, but the account of founding can prove hazardous if it is taken as signaling the capacity to evade, however temporarily, the conditions of the world. No fable is sui generis, and Derrida points out that the American founding is rooted in constatives including the Declaration’s author, his location, and a willing audience who invest themselves in the process. It also includes the dynamics of language itself, the practices of signature and cartography that render life as a representation, and the ideas of law, religion, or democracy that make countersignatures available for the event. These tools help deliver the fable of a self-mandating moment.When it embraces the idea of self-validating performativity, political theory becomes one more tool available for that effort. The circularity of the founding dynamic can be mesmerizing, but this is precisely how the fable is created. If there’s no identifable prior entity with suffcient constituent power, and yet something ultimately appears, that thing must be self-generating, or so the logic goes.This explanation hides more than it reveals. Because its appeal is based on papering over or retroactively obscuring the most disconcerting parts of the founding process, it leaves the most interesting passages of the founding operation undertheorized. Deeply new speech stands at odds with conventional language, meaning it appears frst as a disruption, playfulness, or a kind of nonsense, hence the signifcance of parody under Butler’s account. The effect it creates – the only effect it can create at the outset – is surprise and undecidability. Because it speaks to us from Derrida’s ditch of language, that point where language breaks down, it unsettles efforts at certainty (Derrida 1988, 17; Butler 1990, xxviii). By giving founding speech both a cause and a purpose, the

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fable of self-generating performativity reassigns what frst appears as raw and surprising to the realm of the familiar and well-cooked and makes what is unfathomably new into something coherent and recognizable. The claim that foundings create their own conditions of validation is thus serving a purpose something like that of Derrida’s divine countersignature. It doesn’t describe a reality so much as it soothes the unsettling experience of newness by giving it a recognizable provenance and patterning under the hallmark of constituent power.The fable of self-generating founding is actually evidence that the conventional orders of language and meaning have reclaimed an event from what is most chaotic in speech. Once speech is reclaimed in this manner, once it has been taken as self-validating, it arrives back in the land of everyday politics. None of this eliminates the moment of chaotic creativity from the operation; it merely buries it within a fable of self-suffciency.

Conclusion Bonnie Honig argues that conceptual problems surrounding constituent power should come as no surprise.They form part of a sequence of paradoxes that emerge in the wake of efforts to portray political life in representational form. Beginning with Rousseau’s paradox of founding (which came frst, the lawgiver or the good people?), they move through the paradox of democratic legitimacy that haunts deliberative democracy (how can a demos speak collectively?) and end with the paradox of constitutionalism that manifests in founding (what’s before the law?) as the most recent formulation. But these are all versions of the same dynamic.To think or act politically, she argues, involves us in an “infnite sequence” of movement between two dimensions of this paradox – one captured in the tidy unity of Rousseau’s general will, another in the messy plurality of his will-of-all.The two are representationally distinct but functionally interwoven, and politics always calls one side back toward the other (Honig 2007, 14–15). Efforts to reduce, refgure, or resolve any form of the paradox by means of reason, logic, deliberation, or decision prove futile because the original problem is rooted in representation. We are always looking at political life through a frame that limits the possibilities of our expression, and any efforts at solving the paradoxes thrown up by this viewpoint begin with representational choices that color the outcome.To deliberate about constitutional tradition, for instance, is to accept certain historic events as authoritative, and the contingencies of any given event inevitably foreground some possibilities over others. Taking a constitution as a starting point, therefore, requires “one of those moments of decision that critics claim are discernable in deliberative democratic theory,” despite its efforts at openness (Honig 2007, 13).The same is true of founding. Retroactive performativity must be conceived of as a historical event in order to be conceived of at all. That means any theory of founding based on retroactive performativity is already taking sides in the conceptual tug-of-war that Honig describes.

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Reframing founding as a retroactive, temporally distributed, and subjectless process doesn’t escape the representational tensions Honig identifes. In performative founding, the subject is the recipient of performative attribution from a different temporality and the frame of reference for the action is supplied later. This sets up a deep misalignment whereby “the constituent remains irreducible to the conditions of its emergence and the representational space afforded to it” (Christodoulidis 2008, 205). Searle may have imagined a decisively functional declaration, but Derrida showed how easily living language disrupts that theory. Butler showed how even the users of language represent an unstable element and that performatives cannot magically create something out of nothing. If constituent power never maps back onto the conditions of its origins, it “cannot at the same time be performed and held up to scrutiny” (Christodoulidis 2008, 206). Retroactive performativity is not available for evaluation in its own moment, and by the time it can be represented and evaluated, it’s not available for intercession.This sets up a troubling accountability problem. Undecidability is not limited to the moment of origin but expands until the dynamics of founding are placed outside the reach of meaningful theoretical examination. The concept of retroactive performativity not only renders the extraordinary experience of beginning in familiar terms, it also insulates that process from evaluation. Performative founding appears self-validating because once the representational and interpretational coup is complete and the founding fable is accepted, the operation becomes inaccessible to critique. Left unresolved under the performative model then are two main questions. The frst asks,“who speaks in founding speech?”The conventional answer is “the people,” but it takes creative self-deception to make this work. The second asks, “what authority validates a founding?”The burdens of innovation lead us to supply answers to this question, but it might be wiser to leave it open and accept messiness instead. In the American case, timing proves crucial in resolving both questions.The instantaneous embrace of founding speech overcomes the problem of speaking, and the atemporal absolutes of God, Nature, and beginning align to underwrite the new authority. But not every founding followed this model, and moving beyond the American paradigm makes the gaps in the performative operation apparent. If the concept of self-generating performativity serves to redirect what is unruly in founding speech back within the conventional bounds of language and politics, thanks to the instantaneous and retroactive endorsement, it suggests that irregular foundings may prove especially useful for exploring the dynamic. Foundings which never suffciently emerge from their point of origin to arrive at a level of coherence and recognition that looks self-suffcient are like nonsense in a linguistic sense; the qualifying feature is that they fail to signify. By eliminating the category of nonsense from the category of speech, it’s possible to make speech look like it works in clear and predictable ways every time, simply because the framework eliminates the element of play in language.This was essentially Austin’s

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move in excluding less serious performatives. But this is not representative of the full universe of speech, and nonsense is critical to understanding how language works, not least because it is how new ideas and new forms of speech frst appear in language. Foundings that remain to some degree incomplete, which have not reached a point where their success makes them candidates for retroactive selfvalidation, stand the best chance of retaining the unsettling and unruly elements that make them productive.They are valuable to theory for this reason. A failed founding can look like parody or nonsense, but this may be because it remains close to the disruptive and creative force of language itself. And when the retroactive circuit remains incomplete, the process remains available to critical evaluation in a way that successful performativity can evade. Moving beyond the concept of self-sustaining retroactive performativity, which by its very existence implies that the founding fable has proven successful, therefore requires looking at instances where an element of incompletion derails the translation of unauthorized propositions into self-mandating authority.

Notes 1 Alan Keenan points out that these promises also serve to contain the freedom Arendt celebrates in beginning (2003, 89). 2 Honig suggests that Arendt’s position is redeemable if her views on pure beginning associated with the Declaration are read in concert with a second Arendtian concept of authority as something augmented over time (1991, 109). Arendtian augmentation effectively brings the missing constative back in. 3 The fnding is reminiscent of Arendt’s emphasis on birth as the condition that equips humans for political beginning (1963, 203). Arrival into the world as embodied creatures provides a necessary setting for everything that follows, and however creative humans become, bodies remain our constant companions. But physical presence is not suffciently political on its own merits, we must also enter the political world as actors. Bodies are Arendt’s (and Butler’s) constative ground. 4 This is true not only because it requires latent dispositions but also because creative and artistic acts are not appraised in terms of validity, but in terms of taste, which predates the event. 5 Although Arendt describes validity as one of the requirements for the founding effort, and Frank suggests “constituent action performatively produces the conditions that guarantee the validity of the performative” (2007, 106), validity is a tricky term in law even at the best of times. It may suggest effcacy, correct derivation in law, or normative or rational value (Aarnio 2011).To complicate matters these different elements can be at odds, so there is no prior defnition of validity to rest the founding process upon. Instead the instability around validity is what political founding should resolve.

References Aarnio, Aulis. 2011. “The Formal Validity, Effcacy, and Acceptability of Legal Norms.” In Essays on the Doctrinal Study of Law, edited by Aulis Aarnio, 96:125–130. Law and Philosophy Library. Dordrecht: Springer, Netherlands. https://doi.org/10.1007/978 -94-007-1655-1_16. Arendt, Hannah. 1963. On Revolution. New York: Penguin Books.

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Austin, J.L. 1975. How to Do Things with Words. Cambridge: Cambridge University Press. Butler, Judith. 1977. Excitable Speech:A Politics of the Performative. New York: Routledge. ———. 1990. Gender Trouble: Feminism and the Subversion of Identity. New York: Routledge. ———. 2015. “‘We the People’ – Thoughts on Freedom of Assembly.” In Notes Towards a Performative Theory of Assembly, 154–192. Cambridge, MA: Harvard University Press. Christodoulidis, Emilios. 2008. “Against Substitution: The Constitutional Thinking of Dissensus.” In The Paradox of Constitutionalism: Constituent Power and Constitutional Form, edited by Martin Loughlin and Neil Walker, 189–208. Oxford: Oxford University Press. Derrida, Jacques. 1986.“Declarations of Independence.” New Political Science 15: 8–12. ———. 1988.“Signature Event Context.” In Limited Inc, 1–24. Evanston, IL: Northwestern University Press. Frank, Jason A. 2007.“‘Unauthorized Propositions’:The Federalist Papers and Constituent Power.” Diacritics 37 (2–3): 103–120. https://doi.org/10.1353/dia.0.0030. Honig, Bonnie. 1991.“Declarations of Independence:Arendt and Derrida on the Problem of Founding a Republic.” American Political Science Review 85 (1): 97–113. https://doi .org/10.2307/1962880. ———. 2007. “Between Decision and Deliberation: Political Paradox in Democratic Theory.” American Political Science Review 101 (1): 1–17. https://doi.org/10.1017/S 0003055407070098. Keenan,Alan. 2003. Democracy in Question: Democratic Openness in a Time of Political Closure. Stanford, CA: Stanford University Press. Lindahl, Hans. 2003. “Acquiring a Community: The Acquis and the Institution of European Legal Order.” European Law Journal 9 (4): 433–450. https://doi.org/10.1111 /1468-0386.00185. ———. 2007. “The Paradox of Constituent Power. The Ambiguous Self-Constitution of the European Union.” Ratio Juris 20 (4): 485–505. https://doi.org/10.1111/j.1467 -9337.2007.00372.x. ———. 2008. “Constituent Power and Refexive Identity: Towards an Ontology of Collective Selfhood.” In The Paradox of Constitutionalism: Constituent Power and Constitutional Form, edited by Martin Loughlin and Neil Walker, 9–24. Oxford: Oxford University Press. ———. 2015. “Possibility, Actuality, Rupture: Constituent Power and the Ontology of Change.” Constellations 22 (2): 163–174. https://doi.org/10.1111/1467-8675.12154. Madison, James. 2009.“The Federalist No. 40” in The Federalist Papers edited by Ian Shapiro, 198–205. New Haven, CT:Yale University Press. Searle, John. 1977. “Reiterating the Differences: A Reply to Derrida.” In Glyph, 198–208. Johns Hopkins Textual Studies 1. Baltimore, MA: Johns Hopkins University Press. ———. 1989.“How Performatives Work.” Linguistics and Philosophy 12 (5): 535–558. Sieyès, E.J. 1987.“What Is the Third Estate?” In The Old Regime and the French Revolution, edited by Julius Kirshner, 7:154–179. University of Chicago Readings in Western Civilization. Chicago, IL: University of Chicago Press.

3 AMERICA’S DECLARATION OF INDEPENDENCE AS INDEX CASE

The American Declaration of Independence is historically unique, linguistically ambiguous, philosophically protean and “jurisprudentially eclectic.” It is also the index case for a “genre” of documents that signal state formation in the modern age (Armitage 2007, 13, 89). But it is not the act that made the American colonies independent.That honor goes to a resolution passed by the Continental Congress on July 2, 1776. Even that event did not found the United States of America; it marked the independence of thirteen colonies that only subsequently unifed. Given that the question of independence had been settled two days earlier, why did the American colonies feel it was necessary to declare their action in a separate document, with quite a different structure? The answer to this question may help explain why the American experience has been imitated around the world. But efforts to address it face an uphill struggle, in part because, as Garry Wills explains, the document has been “constantly invoked but rarely studied,” until it became “a misshapen thing in our minds” and only remotely related to its original form (1978, xxiv). Although Hannah Arendt touched upon the Declaration in On Revolution (1963),Wills had to look back to Carl Becker’s 1922 book for another work exclusively dedicated to the subject. Since then, there has been something of a renaissance of work on the subject, including Pauline Maier on the manifold authorship and complex reception of the Declaration (1997), Jay Fliegelman on its popular evolution and communication (1993), Alexander Tsesis on its mobilizing power (2012), and Danielle Allen on its egalitarian implications (2014).And of course Derrida’s brief but brilliantly provocative essay used the Declaration to explore the concept of performative founding (1986).Yet, for all this renewed interest, the document retains its enigmatic quality.

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Neither Derrida nor Arendt considers the Declaration a simple performative. Yet in the absence of anything better, the idea of its performativity has taken root, leading work on the Declaration dangerously close to Butler’s “magic words” fallacy that erases the grounded operations of performative speech (1977, 21). In contrast, the discussion in this chapter fnds the document was part of a distributed pattern of communication that ventriloquized a collective voice, calling for judgment from local and global audiences. This unsettled quality helps explain why the work of the document feels perpetually new and why its implications are not nationally bounded. After a brief review of the document’s contents, the chapter looks at its role within American constitutionalism, where it sits somewhere on the margins of law. Next, it locates the Declaration as part of a reiterative process of petitions and correspondence in the early colonies that laid claim to authority through imitation and repurposing.The third section considers how contemporary ideas on speech and sincerity framed the document’s rhetoric. The following section expands on the communications theme by looking at the idea of “printed voice,” wherein the widespread use of print made the displacement of voice through ventriloquism commonplace. Finally eighteenth-century thought on international relations positioned the project within a wider world and stipulated a duty to declare the justice of one’s cause.With these aspects of the document in mind, the chapter considers the Declaration’s standing with regard to constituent power and performative speech. It concludes by refecting on the Declaration as an action in speech that tests the limits of performativity. Ultimately, the document is more grounded and dispersed and less instantaneous and magical than performative narratives imagine. Its authority appears less convoluted but more tenuous or partial under this view. The American founding has been the subject of extensive historical research on its philosophic origins, although this chapter does not engage that literature. Here the focus will primarily be on communications practices, which for Arendt constitute the real action of political beginning (1963, 120–1). While divining the conceptual heart of the Declaration has become something of an ideological Rorschach test in contemporary American life, this book aims at theoretical and communicative insights that transcend any one case.The hope is that drawing on the American experience can serve the aim of understanding founding speech more broadly, without being caught up in a discourse of American exceptionalism. On the subject of history, however, there is one dimension of the document that should be acknowledged from the outset. While the document claimed to speak for one American people, it did nothing to address slavery, and even a mild rebuke on the topic that Thomas Jefferson wrote into the frst draft was swiftly removed.There was no attempt to include the rights of women either, although the wife of one of the main authors, Abigail Adams, pressed for recognition. And fnally, beyond calling them “merciless Indian Savages,” the document is silent

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on the status of Indigenous peoples, even though their fate too was sealed by its claims. So whatever else it achieved, the Declaration did not overcome some very basic social ills.The Declaration may be the global paradigm of modern founding speech, it may even have set the seeds for later progress, but it also left much to be desired.

The Declaration as Document What makes the Declaration different, and more consequential, than the original resolution for independence is that it doesn’t just announce an action; it provides a structure for judgment, evidence for evaluation, and models the stakes of a decision. It is also longer and wordier than the original resolution but still short enough to be presented on a single broadsheet,1 making it amenable to distribution, public reading, and display. It has three main parts: a preamble containing a statement of timing and principles, a list of injuries stressing the futility of appeal, and a restatement of the independence claim, backed up by personal pledges.2 Together these parts framed a new reality for American colonists. The preamble opens by identifying a particular moment in time as a critical juncture for communication, saying: When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. This is followed by the most famous lines in the document, which identify “selfevident” truths upon which judgment should be based.These include a claim of equal rights in “Life, Liberty and the pursuit of Happiness,” that the powers of government are derived from “the consent of the governed,” and that a people had a duty to “alter or to abolish” any government that “evinces a design to reduce them under absolute Despotism.” This leads immediately into a list of injuries showing a design for despotism was underway. Despite being its literal centerpiece, this list is one of the least celebrated parts of the Declaration.The list lacks specifcs and the physical layout and the repetitive wording frames the items not as random events but as a unifed order of affairs. Passages that follow the list reinforce the impression of a recurring pattern of abuse and failure, saying that efforts at “Redress” were met with “repeated injury,” while their “Brittish brethren” proved “deaf to the voice of justice and of consanguinity.”The list of injuries concludes by saying that “necessity” dictated a deep change.

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The fnal paragraph of the document is the most legal in tone, leading into the repurposed text of the earlier July 2 independence resolution and concluding with a pledge on the part of representatives in Congress to commit everything including lives, fortunes, and “sacred Honour” to the new course of affairs. The most cited phrases among contemporaries appear in this passage. For Americans of the time, the lines indicating that the colonies “are, and of Right ought to be” free and independent and that their connection to the British state “is and ought to be” severed were the most impactful (Maier 1997, 160).The is/ought dynamic, the litany of injuries, and a fnal statement of commitment were therefore central elements of the document at the time, even if they have faded in signifcance behind passages focused on rights and equality.

The Declaration and American Constitutionalism One way to explore the form of speech used in the document is by considering its status within the American legal landscape, including how it is classifed in terms of legal speech. However much American politics and constitutionalism are indebted to its existence, the American Declaration is not generally considered formal law. At the layman level, however, there is tremendous confusion over the status of the document and apparently as many as 84% of Americans believe key phrases from the document, such as “all men are created equal,” actually appear in the US Constitution (Eyer 2016, 428). This means that for a signifcant proportion of the American populace the Declaration blends with the constitutional order, while the legal system holds it separate. Alexander Tsesis thinks that the average American has it right and that the legal parsimony that sets aside the Declaration as a form of law underestimates its role as a “constructive tool” of constitutional guidance. Tsesis reads the Declaration’s reference to the “pursuit of Happiness” as an “axiomatic” statement about human dignity, rights, and liberties, and he points to the way it served as a rhetorical and conceptual lever to correct the errors of the nation’s frst constitution with its accommodation of slavery.At its origins the document served as “a battle cry and call for unity” and provided “something more concrete to coalesce around than a mere abstract concept of liberty” (Tsesis 2012, 26–9, 81, 370).That quality has inspired generations of social movements and rights activism ever since, Tsesis argues, even if its recent uses have often been for patriotic rather than progressive purposes. Given that the document has already provided essential guidance for framing and reforming American law, he claims it represents a “higher order of norms” than the constitution and calls for a “robust message” from the Supreme Court to recognize its place in the constitutional order. The Court’s use of the Declaration has been, he recognizes, “uncommon and irregular.” But he argues that the values in the document have been formally incorporated into the constitution via the Reconstruction Amendments.This incorporation affrms it as a

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statement of principle with “constitutionally binding” force (Tsesis 2012, 312–16, 383, 398). Frank Michelman offers a more measured endorsement of the Declaration’s status, suggesting that there is little precedent for reading it as “supreme law beside or above the Constitution,” although he believes it could serve law in more indirect ways.These would be, frst, as a source of “interpretive-contextual” orientation and, second, as a source of “creedal guidance.” One of the limitations on the legal status of the Declaration, he suggests, is the requirement in law for the “fxation of meaning” through “adjudicative precedent.” It means that the Declaration, if taken as law, would be put “in the lap of the Supreme Court … to settle for the country as a whole” (Michelman 2016, 575, 583). When drawing on the document as a source of interpretative insight or creedal guidance, in contrast, what matters is what a particular justice makes of the document and whether that interpretation is persuasive as part of a judgment or a ruling. One of the enduring features of the document, therefore, is that it does not operate like law, and as a consequence, does not require authoritative decisions on its meaning. It remains a source of inspiration for law without being bound by the limitations of the practice, putting it in a privileged position. It remains “a symbol of national commitment to the pursuit of social justice” and “an available rhetorical template for American political argument” (Michelman 2016, 598). Whatever its formal legal role, the Declaration casts a long shadow over American jurisprudence, and Mark Graber suggests that any law student lacking an understanding of the Declaration’s place in American constitutionalism “is not prepared for legal practice.” Although “uber-texts” like the Declaration are “not the source of any important legal right,” it is nonetheless “the central text of the political constitution” (Graber 2016, 511–16). In other words, because it is central to forms of legal practice that take place outside the courtroom, it is also critical to what happens inside it. Inside the courtroom, the oft-cited Declaration is one of a category of texts that are “vital” for interpreting conventional constitutional law. Resourceful lawyers should therefore be familiar with the ways they can apply the text as part of their duties, including what Graber calls “a celebrity citation” which involves using the document as a well-known, generally well-endorsed, and easily relatable reference, or as an “intensifer” to highlight the signifcance of some element of law via its association with the document (2016, 519, 522). While the use of the Declaration as a celebrity reference or intensifer of legal principle refects its ongoing relevance for law, there is nothing to guarantee that the principles it intensifes are always consistent or coherent. Graber argues that effective lawyers need to understand how best to “manipulate” the document for the purposes of persuasion (2016, 515). Katie Eyer shows that its legal appearances refect an unsettlingly protean quality, including that the document can be successfully appealed to from different sides of an issue. She documents the shifting way the Declaration has been used in legal arguments on affrmative action.At the beginning of the equality rights debate in the 1960s, the Declaration was used to

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intensify calls for affrmative measures. The discourse reoriented over time until the Declaration was primarily aligned with positions against affrmative action on the grounds that it undermines equality rights. Eyer suggests that “changing patterns in the invocation of the Declaration” are commonplace and can be used as a “bellweather” on political and constitutional development because they mark an “entry point for popular engagement.” If the document marks “key contested terrain” and refects shifting views on what constitutionalism requires (Eyer 2016, 448–9, 454), this would complicate its usefulness as an interpretational guide. Still, given the infuential standing of the document, the suggestion has been made that it could be taken as law if there was suffcient will to do so. There is nothing that excludes the Declaration from the corpus of American law since “what is law is simply what a society decides is law.” Any constitutional order’s foundational rule is, in effect, identifed by “the raw empirical fact of social acceptance” (Schauer 2016, 621–36). Granted, the Declaration lacks the prescriptive language characteristic of most law, but resourceful interpretation could address this.Yet making the Declaration into conventional law might well weaken it as a political force and as an “intensifer” of law. It might also invite extensive instability into the operations of law and pose problems for democratic politics, by assigning responsibility for political decisions to judicial structures. Debating the meaning and implications of the Declaration forms part of American political tradition. Formalizing those debates as part of the constitution might clear up its legal status, but the Declaration may be more valuable in its current form. Jack Balkin considers the Declaration a critical part of the US Constitution but qualifes that claim in a way that places the document in a unique category. The Declaration is “a source of inspiration,” as he explains with Sanford Levinson, rather than “clear guidelines or justifcation for action” (2016, 426). Instead, the Declaration is constitutional for Balkin, simply because it constitutes and, critically, because of how it constitutes. The document marks the frst position, the origin point, on an extended legal “trajectory,” but it also drives the American project along that trajectory.The Declaration, in other words, has Janus-like qualities because it invites readers to simultaneously look backward and forward, backward to hallowed origins and forward to commitments “yet to be fulflled.” Balkin says the Declaration is a promise to future generations that certain aims can be achieved. He even goes so far as calling it “a prophecy” (1999, 75, 169–70). Prophecy has a very specifc structure as a way of talking about time. It suggests a promise of change that demands faith as well as committed action from its hearers. Balkin distinguishes prophecy from mere “fortune telling.” Prophecy is not just saying that something will happen as if it’s a fxed prediction; it is a way of leveraging the future through conviction and commitment. The Declaration, for Balkin, is a prophetic document because its hearers, throughout the generations,“must make the story come true.”There is always something incomplete in a prophetic claim, and the authors of the Declaration had “no privileged insight” into how their aims would ultimately be realized.This refected no failing on their

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part; rather the document’s prophetic quality meant it addressed “a redemption whose full contours could not be known in advance” (Balkin 1999, 178). Claims about the right to restructure or recreate government, for instance, were not “worth the parchment they were written on” without both domestic and international recognition (Balkin and Levinson 2016, 410).What makes the document powerful, therefore, is not some freestanding ideology, nor even a special quality in the speech used to deliver it. But because it invites a certain kind of engagement it can prove transformative, assuming it fnds the right audience. Looking at the legal status of the Declaration makes clear that, while it is signifcant for American constitutionalism, law cannot entirely account for its power. However infuential, the Declaration is something outside, beyond or before law. By drawing its authority from a separate source, it serves as a lodestar for American constitutionalism, but there’s no guarantee where that might lead. Since it’s technically not even the act whereby the country became independent, its position in American constitutionalism remains irregular.

Protocols and Petitions If the Declaration has never been fully integrated into American constitutionalism, despite being a founding document, then law or legal requirements do not account for its operation. So, where does the imperative to issue it arise? William Warner makes a strong case that the American Revolution should be understood as “an event in the history of communication” (2013, 1), although “event” seems like the wrong term here, as Warner’s account describes something more like an extended evolution. American political activism, he argues, was driven by the creative repurposing of tradition, combined with the resourceful use of new communications practices.The Declaration should be read as part of an emerging convention of political correspondence, frst pioneered in Boston but spreading throughout the colonies in the years leading up to 1776. The correspondence system consisted of locally drafted resolutions and popular declarations that set out the colonists’ grievances against British authority. For Warner, an important feature of these communications was that they were “informed by the correct forms of procedure and law,” while simultaneously innovating a new form of politics that made revolution possible (2013, 7). Warner characterizes these emerging practices as a “protocol” of communication. For Warner, protocols are “enabling constraints”; systems or structures that make a source of information intelligible, like the index to a book which organizes and indicates its content (Warner 2013, 17–18). By assuring a certain degree of regularity or familiarity, they standardize the communication process, and because they shape how we communicate, they also infuence what we communicate (Innis 1951).The protocol for the American popular declaration emerged when Boston appointed a Committee of Correspondence that made several critical twists on the standard protocol for Royal petitions. Since the right of petition

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was sacrosanct under English law, this grounded their actions in constitutional tradition while making possible its transformation.Warner’s protocol model of the Declaration suggests it cannot be fully understood without appreciating how this high energy and high engagement period of innovation set the stage for a fnal and defnitive declaration. In fact, there were at least 90 declarations of independence that immediately preceded the national one.These declarations departed from the petition format by incorporating a commitment to, and justifcation for, independence, but were otherwise “remarkably alike” (Maier 1997, 49). Warner believes these colonial innovations redirected both the energy and authority of the petition of grievance, “morphing” it into a focus for activism. The local declarations in turn forged their own protocol, which consisted of a statement of rights, a list of grievances, and an address to the originating Boston committee that was designed for public consumption. Unlike the traditional right of petition, the new declarations and related correspondence were a collective effort rather than a personal appeal.And instead of offering a testimony of loyalty and deference to a higher authority, they were addressed laterally to fellow citizens as a means to bear witness to the causes of grievance (Warner 2013, 51–3, 66). Perhaps the most important measure adopted under the new protocol was that local declarations were framed as part of a correspondence with other communities. By inviting recipient communities to write back, this created a network of local bodies aligned with the new protocol. Part of the expectation included that responding towns should aim at unanimity and the resulting resolutions be made publicly available.The local declarations were circulated in print, among similarly self-constituted local bodies, and were frequently read aloud in a live performance of the aggrieved cause. To keep them accessible, declarations were written in a plain style that was felt to align with republican virtues.Warner believes the effort to align the declarations and correspondence with formal legal proceedings familiar from older petition protocols refected an awareness of their “dubious legitimacy,” while the commitment to publicity was an effort to avoid charges of secret plotting and sedition.The cumulative effect was to make the “we” in the resolutions and declarations into something “actual” (Warner 2013, 62–3, 84–5, 95). Because the correspondence activity was built on Whig networks already in place throughout the colonies, for Warner, the “we” in the Declaration “is literal before it is fgural, tangible before it is virtual” (2013, 234).These developments in turn helped resolve the problem of constituent power, as Arendt suggested. By hybridizing a new protocol on declaratory power out of a combination of petition, resolution, correspondence, and publicity, the colonies set a new precedent upon which Congressional actors could subsequently draw.The “proven success and quasi-legal precedent of hundreds of Whig popular declarations” that had evolved in the years preceding the Declaration cast the document as the continuation of a tradition rather than its interruption. In effect, the Declaration “incorporated previous declarations” into itself. By following shared protocols on

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legal procedure, collective action, and public address, the Declaration became the “culmination” of a communicative practice, albeit grounded in universal rather than British rights. Still the success of the Declaration had a curious effect. It “had the effect of erasing the many declarations that constituted the platform upon which” it originally evolved (Warner 2013, 235–6, 236 fn. 4). Warner’s protocol model of declaratory authority suggests an important qualifcation on the standard model of the Declaration, where it is viewed as a performative coup de grâce. It suggests this operation did not take place in a vacuum and was not an ex nihilo miracle performed by confused or self-deceiving actors. Colonists could see something real and immediate happening in their communities, and those actions supplied a template for subsequent moves. Nor was the operation obscured by willful blindness, a factor that Arendt suggests made the Declaration possible. Colonists could hardly avoid seeing their own role in these events because they were called upon to make a careful decision about participation. Indeed, the structure worked by inviting people into a mutually supportive chain of communication that augmented with each new participant. Danielle Allen suggests the document should be understood as an exercise in “group writing.”The result, she says, has recruiting properties and functions as “teaching tool” to cultivate “a collective intelligence” (2014, 34, 191, 228). Rather than fabulous retroactivity projecting the generative force backward, Warner’s protocol model suggests the innovation was front-end loaded, focused on its addressees at least as much as its speaker(s), and featured the future as much as the past. As Warner explains, the colonists “did not yet have the authority to write as they wished, so they drew that authority from the people they addressed. They wrote as if they had the authority to speak for their addressees” (2013, 66). Danielle Allen similarly identifes the “farsightedness” of the document as a challenge to readers to “see where their world is headed” (2014, 115, 238). Unlike Derrida’s fabulous retroactivity with its single audacious act, Warner’s account rests on incremental innovations supported by political mobilization, and Allen’s work describes the recruitment of popular imagination. Both suggest the document appropriates something from the future and uses it as a resource in the present.The temporality of action is therefore distributed rather than concentrated, and the temporal distortion orients forward as well as backward.

A Candid World of Speech and Rhetoric If the deciding feature of the American Declaration was its role as an announcement that accounts for critical political action, then communication rather than law would determine its potency and success. The idea of speech as a mode of social infuence was the focus of considerable interest in the eighteenth century. In a period obsessed with representation, American rhetoric held up an ideal of plain speaking, where speech was considered a means to express an authentic self but also a means to persuade and motivate in proper ways. The movement was,

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in part, intended as an effort to counter abuses of speech that made it possible to deceive, misrepresent, or mislead. Jay Fliegelman argues that the Declaration’s “fundamentally oral character” reveals a great deal about the document. That it was “written to be read aloud” provides a “crucial clue” to its meaning and purpose, he says, and if it is today understood as a somewhat ill-ftting element in the American constitutional tradition, this only confrms how much it has become “radically cut off from its original rhetorical context” (1993, 4, 20–1). Under this view, the aim of the document was not to deliver the “legality and permanence” of legislation, but rather to exert an immediate infuence on actual hearers. Instead of assimilating the document to a legal tradition then, it should be understood as part of a broader effort to “make writing over in the image of speaking.” During the period human voice “was seen as a register of the speaker’s subjectivity,” and Jefferson’s draft of the Declaration was littered with symbols that Fliegelman interprets as aids to pronunciation and delivery (1993, 11, 21, 24). Ceremonious public readings of the Declaration across the colonies formed part of a pattern of pomp and circumstance; “ritual acts” that accompanied the document’s publication (Maier 1997, 158). These readings made the Declaration “an event rather than a document”; they “gave it a voice” (Fliegelman 1993, 25). That voice drew a response from its audience who “experienced emotionally” the impact of its arrival. The emphasis on emotional content refected an approach to American rhetoric that elevated “the performative aspect of speech over the argumentative.” The aspiration to “naked eloquence” captured in the ideal of plain-speaking persuasion accompanied contemporary concerns for a recovery of republican values. But it also refected a concern that speech provided a vehicle for manipulation. In an age “preoccupied” with “uncovering hidden designs behind the masquerade,” the goal was to expose “misleading speech” and action (Fliegelman 1993, 26–37). Early on, the founders believed that newborn American republicanism “required a distinctive language of its own” capable of “serving the needs of an unfolding future” (Howe 2010, 77, 199). It needed a language whose simplicity ensured engagement and transparency over dissimulation and mystifcation.The approach pitted the persuasive and emotional “language of the heart” against “purely rational discourse.” Whereas reason could be manipulated, the stress on sincerity refected “a wishful faith in an irresistible discourse of feelings.” This dream of authenticity amounted to a quest “for an infallible and irresistible language of sound” (Fliegelman 1993, 37, 46–8). But the “troubled history” of the founders’ efforts to “banish ambiguity from the language of revolutionary politics” mainly succeeded in showing how unstable that goal was (Howe 2010, 97). Thomas Jefferson was one of the fgures who invested hope in developing “a fully reliable system of communication,” grounded in the idea that, properly reformed, language could be “simple, exact and capable of constraining human behavior” (Howe 2010, 14, 37). Faith in the “redemptive capacities of the law”

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framed in clear and certain terms meant that such language should deliver with an authority akin to an “oracular voice” (Fliegelman 1993, 51). The problem is that language is always in the hands of some person or another, and this creates an opportunity for ambiguity or abuse to reenter. So long as eloquence and persuasion play a part in the operations of politics, they threaten the aspiration for clarity. The founders sought “a language capable of standing above political confict and, through its own authority, promoting good order” (Howe 2010, 52). The aspiration was to “blot out authorial innovation, to ventriloquize common sense and sensibility.” If successful, the Declaration would then move from the realm of mere representation to one of “embodiment.”The aspiration aligns with Jefferson’s view of his work on the document. He argued it was not an act of political creation so much as enunciating “a fact which already exists” in the American mind (Fliegelman 1993, 65, 87, 143).Yet to do so he needed to play the role of “national poet” who channels the spirit of his people. Fliegelman calls the resulting tension, where speech serves as an art or instrument to deliver the natural order of politics, “the paradox of a natural theatricality.”The twin aspirations for sincerity and persuasive power embedded this tension at the heart of the founding effort, leaving the Declaration “rife with internal conficts” (Fliegelman 1993, 98, 189–90). The debate on speech and language suggests it is wrong to conceive of the founders as “fully confdent about the clarity of their language and the permanence of their expressions.” The commitment to clarity had to accommodate itself to the imperatives of persuasion, making for a complex set of motives.While the “Plain Style” movement inveighed against dressing up political discourse with fgurative language, the value of metaphor as a way to illustrate something new offered unique resources in a period of political change (Howe 2010, 7, 103). Faith in a refned and transparent language for the colonies therefore developed alongside practices that capitalized on the fuidity of speech. While the Declaration refects a certain romanticization of orality as a medium of sincerity, its authors were addressing a print-driven world. The orality they celebrated was fltered through printed media, creating a strange hybrid of voice that solidly displaced it from the locus of self. Considering the infuence of print on the aspirations to oracular purity therefore puts the aspiration to transparency in a new light.

Printed Voice The late eighteenth century was a period coming to grips with the infuence of print on public discourse. Pamphleteering was reaching its height as a political art, and print allowed voice to be disconnected from its originating body, obscuring the source in ways that produced new effects.These techniques included the widespread use of anonymity and pseudonymity in public speech.The associated capacity to project voice into absent or imaginary bodies was a “nearly universal practice” in the period, with between 77% and 85% of publications effectively going authorless (Howe 2010, 9, 130).Thomas Paine,Alexander Hamilton, James

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Madison, John Jay, and Jefferson himself all published unattributed or pseudonymous works. The practice not only served the purpose of avoiding imperial retributions; it also refected a republican ideal of civic virtue, where the desire for status or personal success was subordinated to the greater good.The practice made it possible for authors “to experiment with diverse voices” and “created a discursive gap of considerable and uncertain dimensions” (Howe 2010, 128). As Carl Becker put it,“the strength of the Declaration was precisely that it said what everyone was thinking” (1958, 25). In other words, it expressed popular sentiment without localizing accountability for that speech. Stephen Connor argues that because voice and body are intimately connected, the mind is conditioned to locate a body when it hears a voice. If a body cannot be identifed, it must be surmised and projected on to whatever is available, creating the illusion of ventriloquism. Connor believes the struggle over language leading up to the American Revolution refected a struggle between two ideas of language. One, which he calls the “purifying” and “Edenic” ideal, imagined language being brought into perfect correspondence with the world it described. The idea of rhetoric as plain speech and a vehicle for sincerity and clarity refects a variant of this aspiration.The other approach embraced language for its ambiguities as a resource for change and “self-invention.” Connor believes the Declaration gave voice to an otherwise speechless nation by adopting the second approach. The Declaration “gives a voice, or performs the giving of a voice,” as no collective can speak in a single, natural utterance. But the innovation doesn’t stop there. The document attributes the speech, the voice, to the nation it addresses. And in this latter move, the document is dabbling in the structures of ventriloquism (Connor 2000, 230, 232).The “detached voice” that print makes possible creates an opportunity for productive “confusion” about who speaks or what “self ” is at work when a voice is detected (Mulholland 2012, 100–4).3 Jefferson’s response to questions around authenticity in his own writings suggests that he maintained a certain degree of fexibility, even indifference, on questions of attribution that refect the dynamic Connor describes.When faced with charges that he invented the heroic speech attributed to an Iroquois leader identifed simply as “Logan,” Jefferson responded: “Whether Logan’s or mine, it still would have been American” (Johnson 2016, 29). Being comfortable with, even admiring, the creative repurposing of voice doesn’t necessarily mean Jefferson adopted the technique in the Declaration.Yet, if the Declaration showcases the “art of democratic writing” as a collective exercise (Allen 2014, 47), then some element of ventriloquism – in this case the displacement of voice from a person to a people – must form an element in its operation.

The Obligation to Declare The evolution of communications protocols and practices played an important role in establishing the setting and structure for the Declaration. But the fnal document

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went beyond these local innovations. For one thing, the Declaration is addressed to “a candid world” to which some account of the new American actions is apparently owed.The identifed action of the Declaration is also given as fulflling an obligation to “declare the causes which impel” separation.Where did this sense of obligation or global discourse come from? New protocols for international relations were forming during this period, and there is evidence that the American founders took an interest in how they might apply to their own situation. One of the most infuential works on international law and diplomacy of the time was Emer de Vattel’s 1758 The Law of Nations. David Armitage calls the period from 1760 to 1840 “a Vattelian moment” on the grounds that Vattel’s thinking on the independence of states, the happiness of their inhabitants, and associated obligations to mutual aid and constructive trade and diplomacy shaped a new framework for engagement (2013, 222–4). By the 1770s, the book was considered the “standard guide” on questions of international law and diplomacy, and it established Vattel as “the single most globally infuential moral and political writer” of the period (Armitage 2007, 38–41). When Benjamin Franklin wrote to a French correspondent in 1775 that Vattel’s book “has been continually in the hands” of the members of the Continental Congress as they debated independence, it had already been consulted by many leading fgures, perhaps none more earnestly than John Adams, who with Thomas Jefferson and three others formed the small committee charged with drafting the Declaration.4 Vattel therefore represented one of the few sources of guidance available to the Congress. There are three areas where Vattel’s work would have been especially relevant. First, he gives stipulations for conditions under which a nation, faced with a tyrannical leader who has “put himself in a state of war against them” can “pass sentence on him and withdraw from his obedience” (1844, 18).5 Second, he specifes an obligation to maintain friendship among nations and suggests that observing this obligation includes a readiness to declare one’s intentions before acting. And third, by pivoting the concept of sovereignty from an internal focus on authority or kingship to an external focus on nonintervention,Vattel recasts independence as the defning quality of states and makes external recognition key to joining the community of states (Beaulac 2003). Vattel’s stipulations for independence are notable for their alignment with features of the Declaration. For example, he suggests nations ought “patiently to suffer” wrongs until the “injuries are manifest and atrocious” (1844, 21). He also specifed that the failure to protect a dependent nation meant that it “recovers its independence” from the protector state.As he explained,“being thus abandoned,” a population is “perfectly free to provide for their own safety and preservation,” because as with individuals, the right to preserve oneself from injuries is a perfect one (1844, 94–7, 154).Vattelian theory, in other words, brought secession within the boundaries of law and provided a protocol for what independence should look like at the international level. But appealing to it entailed other important considerations. First and foremost, natural law aimed at the happiness of

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all,6 nationally and internationally. For this reason serious effort must be put into civility among states, saying “every nation is obliged to cultivate the friendship of other nations,” to “cultivate justice towards each other,” and regardless of circumstances “should be careful to set … good examples” (Vattel 1844, 138–9, 159). One tangible measure of this rule took the form of Vattel’s requirement that international conficts be preceded by a communiqué. With the exception of a state that has been attacked without warning, no state should engage in hostilities without frst declaring their intentions and justifying their actions in a formal declaration of war. Some confict may be unavoidable, but Vattel stipulates that “we owe this further regard to humanity” to make clear the cause. Furthermore, a nation must do so in a manner that avoids “hatred, animosity, and rage” and upholds the “the most dignifed decorum.” Properly circulated, a declaration of war also ensured that neutral powers were acquainted with the “reasons that authorize” the action (1844, 315, 317–18). Vattel modeled the declaratory requirement on Roman fetial law where special priests were tasked with articulating Rome’s cause before the gods in advance of a military offensive (Vattel 1844, 315). In calling on divine witness, the Roman herald would execrate himself, hazarding his own life to serve as ballast to Roman conviction. If the action proved unwarranted (signifed by defeat), his life was forfeit.The Declaration follows the fetial/Vattelian model insofar as it makes clear the grounds for grievance by detailing what Garry Wills calls “war atrocities” (1978, 72). It also attests that grievances had been long suffered and appeals to “Nature’s God” to bear witness to the cause. For good measure, the signatories pledged their lives and “sacred Honour” to the cause. So the Declaration may be following another protocol with deep roots in oral performance. Reading the Declaration through a Vattelian lens puts the list of grievances and the pledge of life and honor at the center of the document because both are about bearing witness in a form that invites assessment. One critical feature of Vattel’s theory is the place of judgment in the international order. What makes states free and independent of one another is not the absence of a law that binds all parties, as natural law served this purpose. It was the absence of a terrestrial judge to hold violators accountable. Nonetheless, in the case of intra or interstate confict, it appears two instances of worldly judgment inform the operation.Vattel insisted that the only proper judge of tyranny was the nation itself “or a body which represents it” (1844, 18). Assuming that the Congress delivered this judgment in its July 2 resolution, the remaining layer of judgment encompassed the neutral states of the world. As with the fetial laws, that judgment could only be resolved with time.

Performing Independence The paradigm of declaratory founding suggests that a self-sustaining and selfauthorizing moment of speech generates the foundation of law out of the voice

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of the people via a performative coup de grâce. The Declaration makes for a peculiar exemplar of this operation. It began life as a popularly celebrated but legally inert resolution and remains marginal to the legal system except as an extra-judicial intensifer. It invites rather than delivers judgment and rests its claims on anticipation over self-affrmation. As for the voice of the people, it is not only collective and citational, but the voice in the document also rests on displacement and projection for its effect.The chief role of constituent power is to deliver a decision on political order, but the Declaration’s primary role was to offer evidence and invite assessment. It was designed to persuade at home and justify abroad and served as a “propaganda adjunct” to independence itself (Wills 1978, 325, 333). It worked so well that the fact it was not the document that achieved the action in question was, with time, simply forgotten. As Danielle Allen points out, the neglected heart of the document is the list of injuries, which she suggests should be read as a course of instruction in the abuse of power.Allen calls the Declaration a “word machine” designed to produce “good anticipators” (2014, 230).The Declaration primes its audience to anticipate future abuse as a way to reconcile them to the loss of the British connection. But however critical these steps may be, anticipation is not a decision and it cannot deliver the kind of resolve that decision entails. Moreover, establishing the inevitability of humiliation and loss is a recipe for despair, not renewal. Pauline Maier explains the Congress therefore “needed to overcome fear and the sense of loss, to link their cause with a purpose beyond survival alone” (1997, 96). Broad statements of principle in the preamble concerning life, liberty, and happiness provided that counterweight. But they, too, are aspirational. They are, as constitutionalists detect, a promise or a prophecy. If the work of the Declaration was to state the American cause and invite sympathetic judgment, then its authoritative structure is forward leaning, placing power in the hands of its audience. It’s less about who speaks or signs in this instance and more about who could be brought to agree and for what reasons. If the document is a “word machine” designed to trigger reconsideration of political prospects, then it carries an unstable or unresolved quality, although not for the reasons Derrida suggests. This uncertainty was not a product of confusion between constative and performative language; rather because it concerns the future, the question could not be settled within the scope of the discourse. Instead, decision-making was distributed among an audience that included not only conationals but also a Vattelian world community whose judgment could make or break the new project.This quality may also explain why the document appears unspent over 200 years after the event and why the fnal words in the document echo the fetial task of Roman war heralds. A settled decision does not require lives as surety. The dramatic gesture of the signatories overshadows a more complex story of voice in the document. Perhaps the most powerful point expressed in recent work on the Declaration is that its authorship is highly dilute from inception

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to conclusion.What best qualifes the Declaration as the voice of the people is that it appears at the end of a distributed communications exercise involving multiple local declarations. But this distribution complicates any claim for the national declaration to be a singular moment of collective voice. The idea that a voice speaks with authority only when it speaks from an authentic source refects an eighteenth-century aspiration for sincerity in discourse. But the main fruit of that aspiration was a practice of artful rhetoric, a display, or a performance of sincerity that worked by replacing spontaneity with calculated effort. The increasingly widespread consumption of print accelerated the artifce by offering new possibilities for dislocating voice and obscuring its origins. Yet bodies could only be so absent. The “abstracted generality” of print protocols were dead on arrival without the living audiences that received them, even if the unruly crowds of democracy could not be “codifed into any given language or script” (Frank 2010, 69, 75). The dilute or diffuse authorship of the document further complicates the performative picture. While the dynamic includes pivotal moments of public pronouncement as the document was frst approved and then publicized, these form part of a chain of events that cannot be reduced to any particular instance within it.This makes the critical pivot between constative and performative that Derrida identifes diffcult to isolate. Derrida is correct, however, that uncertainty around voice is a constitutive feature of the document. Who speaks in the document is just as unclear as who signs it but not because a divine countersignature diverts attention. Instead, a dizzying multitude of signatures are readily available, in the form of existing declarations, Congressional resolutions, and separatist activism. If the American model represents a paradigm, then it suggests a constitutive element of founding speech is its extended and distributed form. While print constituted new publics unifed by their readiness to embrace ventriloquized or displaced voice, no protocol can adequately capture the living dynamic from which the Declaration emerged. It is notable that constituent power as the infallible voice of the people arrives on the scene at the same time as all voice becomes distorted through a communications revolution already associated with the rise of national identity and the nation-state (Anderson 1991).This being the case, the problem for constituent power is that, while the effects of collective voice may be tangible enough, locating and verifying its source is the real challenge, and listeners are often left to project a speaker of their own accord.This seems to be how popular voice operated in the American case. But voice isn’t only about speech; it’s also about silence. When the extraordinary energy and complexity of the constituent moment is reduced to a single document, that document serves a simplifying and silencing function. The groups immediately silenced by the arrival of the Declaration included anyone uneasy with the severing of British relations, including Benjamin Franklin’s eldest son who, with 75,000 others, went on to become a political refugee (Jasanoff 2011, 64). The document also wrote slaves, Indigenous groups, and women out

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of political history. In other words, the Declaration wasn’t just a protocol for publicizing a new order of authority and it wasn’t just a word machine to turn colonists’ attention toward a new future; it also reinforced patterns of silence conducive to that authority. If the Declaration is the global paradigm of constituent power as performative speech, these silencing effects suggest something troubling about the democratic credentials of the operation. Judith Butler warned against setting up performative speech as a magic words approach to public life that can deliver pure, unsullied newness. Behind the magic, she warns, is a slippery mix of factors that grounds it in actual conditions rather than high intentions. The Declaration showcases elements that should unsettle any neatly performative view of founding. The frst is the importance of bodies. Bodies formed the life of the crowds that accompanied the document at every stage of its evolution and provided the fnal guarantee in the form of the execrated signatories. Bodies – in terms of gender, race, and especially location, in the case of Indigenous populations – also decided who got silenced. Absent bodies make ventriloquism work, and they are also what make writing distinct within communication.When Derrida suggested that a stripped-down version of the Declaration could consist of Jefferson’s name under a map of the United States, he brought the document down to its essentials in terms of a unique body, a name as a citational signature, and location. But the message of the signature is that bodies are ultimately impossible to capture in language (Derrida 1988). Butler suggests that not just citation but creative mimicry is a hallmark of performativity, one that like signature poses problems of sincerity and interpretation. The Declaration mimicked existing protocols and was buoyed along by an emergent communications ecology that made it possible for print to displace voice and subjectivity. Contemporaries attempted to recruit these effects into a language of calculated authenticity, but sincerity is hard to engineer. The potency of dislocated or disembodied voice cannot entirely be put down to print or rhetorical habits either, because ventriloquism works by recruiting willing ears. Connor’s analysis of the Declaration as an exercise in ventriloquism suggests the document cannot be entirely attributed to Derrida’s generative hoax because ventriloquism is different than countersigning a forged document in one important regard.There is certainly imposture in ventriloquism, but the imposture is reliant on the participation of the subject to complete the illusion. As Connor puts it, ventriloquism has no powers of its own; rather it “potentiates” the powers of its audience (2000, 236) by activating a desire to account for what they hear. Despite Connor’s attributing power to ventriloquism’s listeners, the outcome is not entirely the work of attending ears, as that would make it hallucination, not ventriloquism. Because it starts with something actually being heard, however suspect or complex in its composition, the dynamic is not simple retroactivity and explaining any outcome via listening alone would leave out an important initiatory force in operation.

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Conclusion Hannah Arendt called the American Declaration the “perfect way for an action to appear in words” (1963, 121), which amounts to saying it’s the perfect performative. The performative associated with the Declaration suggests the document taps into a deep reservoir of popular politics to deliver self-authenticating speech, bending time to construct its own foundations. Arendt initiated this fable with her elevation of the idea of pure beginning, but it’s worth remembering what action meant for Arendt. It is not the steady and decisive operation that J.L.Austin has in mind as the model performative. Arendtian action enters an already ongoing world, is shaped by the public life of that world, and remains at the mercy of how history remembers. If action is fragile, fuid, and occasionally futile, then the Declaration should be read as a form of speech that models this precarity. If we take Arendt at her word that the Declaration is an action in speech, without reading action as a marker for certainty, voluntarism, or sure outcomes, then the document pushes performativity to extremes. It is the product of welldispersed and reiterated political mobilization, in a period where speech itself was going through transformation, and where the arrival of printed voice made possible displaced, anonymized, and ventriloquized expression. A hail and response dynamic borrowed from Royal petitions and an uneasy combination of authenticity and artfulness were critical to the development of the declaratory form and placed signifcant power in the hands of a receiving audience. Efforts at lawfulness refected an aspiration to ensure seriousness that had to compete with the document’s public and political functions. Risk and uncertainty are integral to the document, a feature showcased in the signatories who openly hazarded their lives and fortunes in its name. Arendt explains that those who constitute “are themselves unconstitutional,” creating an impasse on authority (1963, 176). For the original recipients of the Declaration, when the document still had the quality of Arendtian action, it constituted a leap into the unknown. The greatest challenge posed by moments of beginning, Arendt suggests, is that they require people to “think the unthinkable” (1971, 2,Willing:208). Like Allen’s anticipatory word machine, this task has everything to do with time. Derrida’s fabulous retroactivity seems to suggest that the action of the Declaration concerns what is projected backward to establish an absent signatory. But the direction of action that emerges from the Declaration is forward, leaning toward an unthinkable future, from the point of view of an uncertain present. The emphasis on injury in the document makes sense in this light because by repudiating these losses, the Declaration demands a new start. Arendt’s distinction between renewal and raw newness looks less stark under this account. It also reduces the need for willful blindness on the part of the American founders, who do not blunder on a new order but conscientiously craft it. Claims that the founders executed an elaborate Derridian hoax are equally diffcult to sustain. By starting with what they had – bodies, voice, protocols, rituals,

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and ears – what emerges from this account is a sense of the Declaration as a device that prompts people to rethink or reorient themselves. Danielle Allen calls the Declaration a puzzle or a “riddle” (2014, 197), challenging Americans to imagine a new future. It’s the same term Arendt used to describe founding in general. If Allen is right, then the American case deserves its status as a paradigm of modern founding speech, although not just because it came frst. Rather it represents the kind of puzzle that changes how generations of Americans, and international observers, think about their world. The discussion that unfolded here drains some of the exceptionality from the American Declaration, but with it goes some of its unaccountable authority. The problem with accounts of the Declaration that emphasize its verbal artistry, Warner cautions, is that they “overemphasize the autonomous power of language.” He warns that the Declaration “should not be understood as a conjuring trick of language” whereby “the ‘we’ that speaks the declaration is a retroactive invention of the text of the document.” Instead he thinks that Congress “refused the allure of the performative moment of revolution,” a refusal signifed by including Lee’s resolution in the Declaration (2013, 233–4, 252).The features of the Declaration described here include a readiness to cite and repurpose protocols of authority, to diffuse or obscure the origins of voice, and to project the critical task of judgment ahead.These practices helped create a document with malleable qualities, but they were not the product of retroactive projection.

Notes 1 A broadsheet is an oversized page about the size of a conventional newspaper, suitable for postering. 2 The text of the Declaration is available online at the US National Archives website: www.archives.gov/founding-docs/declaration-transcript. 3 One of the period’s most celebrated, if not infamous, literary epics took “printed voice” even further. The Ossian poems were a collection of materials presented by James Macpherson as the voice of a long-dead Scottish bard. Jefferson considered Ossian – the ventriloquized bard of Macpherson’s work – “the greatest Poet that has ever existed.” He described the poems as “the source of daily and exalted pleasure” in a letter to Macpherson, where he asked to read them in the original Gaelic, even committing to learn Gaelic to do so (Chinard 1923, 202). Macpherson evaded the request, but Jefferson could hardly be unaware that the epic’s authenticity was in dispute.Yet it’s not clear if the controversy carried much weight for the Declaration’s chief author as he believed that even fctional personas could stimulate valid moral feelings (Wills 1978, 189). 4 Vattel’s infuence on the American founding was, for years, underestimated. This was due in part to an error “piously transmitted” from author to author about when his book appeared in the colonies. Charles Dumas gifted three copies of The Law of Nations to Benjamin Franklin in 1775, and Franklin’s grateful response was mistakenly taken to signal the book’s frst arrival on American shores. Recent research has established that the book was in the colonies by 1762 at the latest, where it was much in demand (Ossipow and Gerber 2017, 523–4).

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5 Indeed he says that in many cases “a powerful republic owes its birth” to this “indisputable right” (1844, 17, 20). 6 The Vattelian emphasis on happiness derived from a tradition associated with his mentor Jean-Jacques Burlamaqui and the Scottish school of “common sense” philosophy that in turn infuenced Jefferson’s thinking (White 1978, 181).Vattel may be the reason Locke’s famous emphasis on life, liberty, and property was amended in the Declaration to read: “Life, Liberty and the pursuit of Happiness,” possibly through the infuence of John Adams who was an admirer of Vattel’s work (Ossipow and Gerber 2017, 549). Garry Wills suggests the infuence of Scottish thinkers has been underestimated, saying “America in general had gone to school to the Scots in its last colonial period” (1978, 175–6). However, Pauline Maier suggests the “pursuit of happiness” concept was already commonplace in American writing of the period, as well as earlier European writing (1997, 134), so specifying its genealogy in the Declaration cannot be precise.

References Allen, Danielle S. 2014. Our Declaration:A Reading of the Declaration of Independence in Defense of Equality. New York: Liveright Publishing Corporation. Anderson, Benedict. 1991. Imagined Communities. London:Verso. Arendt, Hannah. 1963. On Revolution. New York: Penguin Books. ———. 1971. The Life of the Mind.Vol. 2,Willing. 2 vols. New York: Harvest Books. Armitage, David. 2007. The Declaration of Independence: A Global History. Cambridge, MA: Harvard University Press. ———. 2013. Foundations of Modern International Thought. Cambridge: Cambridge University Press. Balkin, Jack M. 1999.“The Declaration and the Promise of a Democratic Culture.” Widener Law Symposium Journal 4: 167–180. Balkin, Jack M. and Sanford Levinson. 2016.“To Alter or Abolish.” Southern California Law Review 89 (3): 399–426. Beaulac, Stephane. 2003.“Emer de Vattel and the Externalization of Sovereignty.” Journal of the History of International Law 5: 237–292. https://doi.org/10.2139/ssrn.471382. Becker, Carl. 1958. The Declaration of Independence: A Study in the History of Political Ideas. New York:Vintage Books. Butler, Judith. 1977. Excitable Speech:A Politics of the Performative. New York: Routledge. Chinard, Gilbert. 1923.“Jefferson and Ossian.” Modern Language Notes 38 (4): 201–205. Connor, Steven. 2000. Dumbstruck: A Cultural History of Ventriloquism. Oxford: Oxford University Press. Derrida, Jacques. 1986.“Declarations of Independence.” New Political Science 15: 8–12. ———. 1988.“Signature Event Context.” In Limited Inc, 1–24. Evanston, IL: Northwestern University Press. Eyer, Katie R. 2016.“The Declaration of Independence as Bellweather.” Southern California Law Review 89 (3): 427–456. Fliegelman, Jay. 1993. Declaring Independence: Jefferson, Natural Language & the Culture of Performance. Stanford, CA: Stanford University Press. Frank, Jason A. 2010. Constituent Moments: Enacting the People in Postrevolutionary America. Durham, NC: Duke University Press. Graber, Mark. 2016.“The Declaration of Independence and Contemporary Constitutional Pedagogy.” Southern California Law Review 89 (3): 509–539.

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Howe, John R. 2010. Language and Political Meaning in Revolutionary America. Amherst: University of Massachusetts Press. Innis, Harold. 1951. The Bias of Communication.Toronto: University of Toronto Press. Jasanoff, Maya. 2011. Liberty’s Exiles:American Loyalists in the Revolutionary World. New York: Alfred A. Knopf. Johnson, Amanda Louise. 2016. “Thomas Jefferson’s Ossianic Romance.” Studies in Eighteenth-Century Culture 45 (1): 19–35. https://doi.org/10.1353/sec.2016.0006. Maier, Pauline. 1997. American Scripture: Making the Declaration of Independence. New York: Alfred A. Knopf. Michelman, Frank I. 2016.“The Ghost of the Declaration Present:The Legal Force of the Declaration of Independence Regarding Acts of Congress.” Southern California Law Review 89 (3): 575–600. Mulholland, James. 2012. Sounding Imperial: Poetic Voice and the Politics of Empire. Baltimore, MA: Johns Hopkins University Press. Ossipow,William and Dominik Gerber. 2017. “The Reception of Vattel’s Law of Nations in the American Colonies: From James Otis and John Adams to the Declaration of Independence.” American Journal of Legal History 57 (4): 521–555. https://doi.org/10 .1093/ajlh/njx023. Schauer, Frederick. 2016. “Why the Declaration of Independence Is Not Law.” Southern California Law Review 89 (3): 619–636. Tsesis, Alexander. 2012. For Liberty and Equality: The Life and Times of the Declaration of Independence. Oxford: Oxford University Press. https://doi.org/10.1093/acprof:oso/ 9780195379693.001.0001. Vattel, Emer de. 1844. The Law of Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns. Edited by Joseph Chitty. Philadelphia, PA:T. & J.W. Johnson, Law Booksellers. Warner,William Beatty. 2013. Protocols of Liberty: Communication Innovation and the American Revolution. Chicago, IL: University of Chicago Press. White, Morton. 1978. The Philosophy of the American Revolution. New York: Oxford University Press. Wills, Garry. 1978. Inventing America: Jefferson’s Declaration of Independence. Garden City, NY: Doubleday.

4 POETIC PROPHECY IN IRELAND’S 1916 PROCLAMATION OF THE REPUBLIC

Ireland’s 1916 Easter Rising was an unlikely venture. Short of manpower, resources, and support, it ended in the surrender and execution of its leadership. Yet the Proclamation of the Irish Republic issued at its opening took on a life of its own and is today popularly recognized as the founding document of the Irish Republic.1 The genealogy of the Proclamation sets it apart from the performative ideal for modern founding speech modeled on the American Declaration. The formal conditions for performative speech, such as an authorized speaker and receptive audience, already diffcult to meet under the fuid conditions of founding, were entirely absent in the Irish case.Without some recognizable standing in a given context, a performative runs the risk of not being taken seriously, precisely the problem the Proclamation frst encountered.That the problem was eventually overcome indicates something more is involved. Because it exposes the dynamics of founding in particularly stark terms, the Irish experience provides an opportunity to see how speech fgures in the process of political beginning. And because it was not issued as the voice of the people, the Proclamation shows that some forms of speech can preempt thorny questions around performative completeness or democratic authorship. Despite its eventual infuence, the Rising behind the Proclamation was by no means a popular insurgency. It was the work of a small and secretive movement set on armed resistance in a country that had largely committed its fortunes to a legislative and constitutional path.2 It operated behind the backs of the popularly established leadership of the nationalist cause and turned to wartime Germany for assistance when twenty times as many Irish were serving with British forces.3 And in defance of common sense, the initiative was launched with no real prospect of military success.4 In sum, the insurgents set themselves against the course of Irish history, in full knowledge of the consequences.Yet in short order, the Irish

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populace went from ignorance of the movement, through amazement, and fnally to widespread endorsement.5 Notably, the Irish Proclamation does not speak for a people but to them, in an appeal voiced by ghosts and a personifed Mother Ireland, but one that clearly originates with the Rising leadership alone. Grounded in the energies of death and sacrifce, its authority is openly conditional, and it places crucial future work in the hands of its audience. And in addressing itself to a unifed Ireland, it features an imagination stubbornly resistant to contemporary circumstances. The Proclamation’s style and form, on this analysis, point away from the performative model and toward a new element in founding speech, one with aesthetic or poetic qualities. Poetic speech was the hallmark of authority in early Irish law. Drafted in the midst of a Gaelic revival by some of the leaders of the movement, the Proclamation consciously evokes this legacy.That doesn’t explain why poetry would hold resources for law and political renewal in the early twentieth century, however. And it compounds rather than resolves the question of performative speech surrounding the Irish document. An examination of the Proclamation reveals a document where voice is consciously inventive and authority is displaced. While critical to the history of the document, sacrifce is insuffcient for its success, and its roots in early Irish legal tradition puts it at odds with modern legal convention. Finally, the discussion turns to the document’s poetic qualities and fnds that in this case, founding speech worked by employing language at its creative extremes. While it complicates performativity, the capacity of poetry to take language to its natural limits, and beyond, can prove adaptive for founding. Because it shifts the emphasis from procedure to subjectivity and creation, poetry can account for innovation without the spiral of self-contradiction triggered by popular authorization. Since it engages the heart through memory and imagination, it can also account for retroactivity without falling into perfectionist illusions. Moreover, by drawing an audience into the long-term work of interpretation, demanding they make sense of the ideas they encounter and the efforts made on their behalf, the ultimate potency of such speech becomes the work of living generations rather than select originators.

The 1916 Rising and the Proclamation The reading of the Proclamation formed the centerpiece of the Rising, which took place on Easter Monday and lasted six chaotic days. Fighting was largely confned to the capital, where the action took Dubliners by surprise, including when the Proclamation was read outside the Rising headquarters to a “sparse and almost completely uncomprehending audience.” Popular reaction ranged from sympathy to “pure puzzlement” and even “hostility,” although it mainly “dumbfounded general opinion” (Lyons 1971, 369; Townsend 2005, 265; Foster 1988, 481). British response to the Rising was swift. Along with a nationwide

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crackdown, signatories of the Proclamation were sentenced to death and executed within a month, creating a steady parade of rebels facing death with “tragic dignity” (Kiberd 1995, 199). After separatists swept southern nationalist seats (plus Donegal) in the 1918 elections, a breakaway legislature (or Dáil) was formed.6 Divided loyalties on the island led from renewed insurgency through civil war and partition and eventually to the birth of a new 26-county state. Among the frst acts of the new Dáil legislature was to read aloud a declaration of independence.7 Set in legal formalism by a representative body (as far as 26 counties were concerned) and aiming at global recognition, this 1919 document follows many of the conventions of declarations of independence worldwide, with one exception.The document affrms rather than delivers the founding claim. It clearly associates itself with the Republic begun in the Proclamation and seeks to “ratify” rather than replace it. The 1919 Declaration ratifed a document quite different than itself. The Proclamation uses fgurative language in place of formalism and calls on memory and imagination rather than representative authority. Novelty was clear from its opening lines, which featured a new term invented for the purpose. Poblacht na h’Eireann was used to translate “Irish Republic” and echoes the name for the ancient kingdom of Ireland (Ríocht na h’Éireann) but casts “the People” (pobal) as heir to the restored regime (De Paor 1997, 34–9;). Confusion around authority was not the aim here, however, because the document is immediately identifed as an address of the “Provisional Government of the Irish Republic,” openly acknowledging that the claim to speak for the new Republic is contingent.The fnal of its four title lines confrms this position. Instead of a “we the people” formulation, it is labeled as an address “to the people of Ireland.” So however much the document seeks popular response, it was not delivered as the voice of the people. For all its initial candor, the document launches into an unusually lofty salutation in its opening paragraph. It calls on God, the “dead generations” who upheld the “old tradition of nationhood,” and a motherly Ireland before indicating that the active voice in the Proclamation is the Rising leadership itself. Ireland “through us,” the document explains,“summons her children to her fag.” Ireland as a young or old woman is a common motif in Irish poetry, celebrated in the “aisling” poem. The aisling evokes a dream or vision experience, tinged with romance or longing, and it served as political commentary or to deliver a prophecy. Its use in the Proclamation would have been both familiar and novel. The aisling became associated with the Jacobite cause, surfacing in poetry and song as longing for lost sovereignty (Pittock 1994, 189). But in the Proclamation, the aisling speaks through active revolutionaries not wistful poets and communicates resolve rather than lament, suggesting the genre has been repurposed. The imagery of the opening hail is followed by a paragraph devoted to themes of fdelity and expectancy. Ireland, again as patient mother to loyal children, is described as having “resolutely waited” and secretively “perfected her discipline”

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for action. Ultimate responsibility is placed in her hands, and she is described as taking decisive action:“relying in the frst on her own strength, she strikes in full confdence of victory.”This imagery loads the claims that follow with anticipatory energy, and the Proclamation challenges its audience to consider their own unrealized potential. Indeed, the document refers to the Irish on four separate occasions as “children” making the mother motif its most consistent image.The motif repeats at the close of the document, which echoes the call issued in its opening lines, this time with specifc instructions: In this supreme hour the Irish nation must, by its valour and discipline, and by the readiness of its children to sacrifce themselves for the common good, prove itself worthy of the august destiny to which it is called. The document reinforces its message with an appeal to history and lays claim to a “fundamental right” of national freedom and sovereignty along with ownership over the island – rights “not extinguished” by foreign occupation. Notably this right is not created through colonial experience either.There is no mention of failed representation or imperial neglect, and the list of grievances that fgured prominently in the American Declaration is conspicuous by its absence.The document instead emphasizes the irrelevance of oppression to the Proclamation’s cause, except insofar as it highlights commitment and endurance. The very idea of imperial governance is treated as extraneous, and the only specifc injury mentioned concerns the cultivation of (presumably sectarian) differences, and this is raised in order to again stress indifference on the matter.The discussion of rights is therefore not organized around the articulation of a complaint, and the document conveys a carefully calculated unresponsiveness toward past injury. In contrast to the studied indifference on rights violations, the Proclamation’s authors outline a cyclical account of history, and the “fundamental right” in question is at least in part attributable to the efforts made in its name.“In every generation,” the document explains, the Irish have “asserted their right” to freedom and sovereignty, including “six times during the past three hundred years,” suggesting that regularity is key. In effect, the Proclamation indicates that a sustained record of personal sacrifce underpins its claims and insists that the practice be maintained. What makes the Irish right “fundamental” then is lived credentials not transcendent ideals. Revolutionary actions recharge the sovereignty claim, explaining how the right can be both fundamental and subject to renewal. The action involved in the document is therefore suspended between two important sets of events: Those of the past which concern repeated revolutions alternating with periods of patient waiting, and those of the future when the Proclamation’s call to arms will be answered. Even in the eyes of its own authors, the Proclamation did not mark a moment of pure beginning, and the “august destiny” to which the Irish are called must still be earned.A line like,“Until our arms have brought the opportune moment” for “permanent National Government,”

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expresses the incomplete, conditional quality of the work and locates decisive events in another time. By spreading out the task of founding in this way, the Proclamation ensures that critical actions unwind incrementally, distributing the conceptual load across generations. If past sacrifce generates the fundamental right of sovereignty, then the conduct of current generations is critical to its continuance, and the Irish document was designed to redeem its high aspirations through lived experience. It frames the pending institution of the Republic within a passage that blends revolutionary tradition with the personal commitment of the insurgents. It reads: Standing on that fundamental right and again asserting it in arms in the face of the world, we hereby proclaim the Irish Republic as a Sovereign Independent State, and we pledge our lives and the lives of our comradesin-arms to the cause of its freedom, of its welfare, and of its exaltation among the nations. Recall that the Proclamation was associated with a military initiative whose leaders knew they had “little or no prospect of success.” For this reason, Liam de Paor characterizes it as “propaganda of the deed.” For in signing the Proclamation they must have been “reasonably certain” that they were signing their own death sentence (De Paor 1997, 28, 70).This, then, was the imperative in the document:To issue a call set in traditional poetic form and establish its authority by readiness to die for the cause. Only this can explain the willingness of the insurgents to launch an ill-fated Rising and to face down a populace they saw as compliant in its own oppression. In the aisling genre, a phantasmal woman addresses a dreaming author. The Proclamation’s protagonist, in contrast, wants her audience to wake up.The worst that can happen, it suggests, is to be invisible in life and forgotten in death. But this effectively describes the experience of contemporary nationalists who went to a poorly managed war in a show of imperial loyalty only to fnd their cause displaced at home by the very emergency they answered.While the country had begun the decade buoyant about prospects for legislative independence, two years of uncertainty in the face of war and northern obstructionism shook confdence in the readiness of British authorities to deliver meaningful change. Yet these efforts – by far the more prominent movement in the years leading up to the Rising – go unrecognized in the Proclamation. This silence is signifcant.Years of dedication to the constitutional cause had amounted to nothing. In offering a way to make their efforts relevant again, the Proclamation promised to resolve this impasse for a disillusioned populace. Past disappointments can be redeemed through future action, it insists, and the unspoken stain of imperial neglect overcome. Unlike the American Declaration where injury becomes its rationale, in the Irish document, it becomes an object to ignore through heroic reimagination, although it meant silencing constitutional nationalism in the process.

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Everything in the Proclamation therefore points toward the critical role of audience reception. But there are actually two audiences in the document. First, the Irish people framed as a single unifed body, a remarkable assertion given the country was on the brink of sectarian civil war. And second, the wider world, including “exiled children in America” and “gallant allies in Europe.”The Vattelian doctrine that emboldened the American Declaration makes global recognition a critical test for the claims of sovereignty (Armitage 2013, 223;Vattel 1844).Yet the Proclamation uses quite un-Vattelian language when it asserts its claims “in the face of the world” and defantly “in arms.” Moreover, the insurgents commit themselves not to recognition but “exaltation among the nations.”This focus on prestige suggests the Irish document layered a heroic element over international norms. The national audience was a more complex entity. The document addressed a country deeply divided along religious lines and split over tactics within the nationalist movement. Since the document maintained that the commitment of current generations was the ultimate proving ground for the sovereignty claim, this population must be moved from the role of unsuspecting bystanders to active participants.Yet the audience it addressed could not possibly all see the issue in the same light. Perhaps that is why the most famous line in the Proclamation is one that, again, makes the bond between mother and offspring the metaphor for political belonging.The line,“cherishing all the children of the nation equally,” was likely aimed at loyalists in the North since it goes on to characterize Ireland as “oblivious of the differences carefully fostered by an alien government.”The aim here is reconciliation, but it also expresses social justice aims associated with the Rising, and the document carefully addresses “Irishmen and Irishwomen” on equal terms throughout.Yet the phrase’s renown is largely due to the “failure of the promise to materialize” and not just in terms of a united Ireland. For this reason the pledge provides “the brightest hope” and “seed of deepest disillusion” in the document (Ferriter 2005, 158; Lyons 1971, 371).This emotional legacy points to the affective strategies adopted in the writing. The Proclamation, in other words, is designed to play upon the heartstrings by addressing an absent but anticipated audience, characterized by social and sectarian harmony, one that under the circumstances of its delivery could only be sustained in the imagination. To recap, the Proclamation is an address not by but to the people of Ireland, and the action involved is not executed but anticipated. Standing on the authority of past actions and foregrounding sacrifce over injury, it positions its audience either as witness in the case of the global sphere or as imagined participants in the case of the nation itself. While on the surface its lofty language seems more fable-driven than its American counterpart, the role of fable is quite different.The fctions of the Proclamation evoke a tradition rooted in longing.Where God and Nature dictate a particular order in the American Declaration, in the Proclamation, Mother Ireland and the dead generations issue a call on an unseen

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and in many ways unlikely audience.This turns attention away from absolutes and toward the actors and spectators surrounding the document, leaving them to cash out the promise of history for themselves. Even the naming of the document – as a proclamation rather than a declaration – points to a difference in intent. A declaration is “a formal or explicit statement or announcement,” and it comes from the Latin declarare to “make quite clear.” A proclamation is “a public or offcial announcement, especially one dealing with a matter of great importance” and comes from the Latin proclamare, to “shout out” (“Declaration” 1998; “Proclamation” 1998). Whereas the American Declaration served to clarify a new state of legal and constitutional affairs, the Proclamation issued a summons that addressed its public in terms both forceful and intimate, demanding their full attention. Given that the challenges of beginning are such as to unnerve most participants, where did the authors of the Proclamation get the resolve to own these actions so completely? Envisioned as a traditional performative, the Proclamation would have little ground to stand on. But the Proclamation’s chief author,8 Pádraig Pearse, was a one-time lawyer turned schoolteacher, antiquarian, and poet. Pearse was known for his graveside eulogies and had used the aisling form before. Several other signatories were, like Pearse, prominent in the Irish cultural revival. The Rising itself was steeped in symbolism, and its timing for Easter Monday, a day of spiritual regeneration, was calculated. Pearse understood that some forms of speech don’t involve permission but arise in having a self to spend in expressive ways. And he believed the capacity was not limited to conventional poetry. In a poem entitled “The Fool,” Pearse describes his life as spent “attempting impossible things” and goes on to ask:“What if the dream come true? And if millions unborn shall dwell/In the house that I shaped in my heart” (P.H. Pearse 1917, 334–6; Sweeney 1993, 425). Seen in this light, the task of beginning is available to anyone foolish enough to broach the effort.The Proclamation drives home the message that this creative capacity also lies within reach of its audience. Thus Pearse arrives at an Arendtian view of beginning as common human patrimony although he replaced blind worship with foolish audacity. Does the deeply rooted poetic tradition Pearse evokes provide a different kind of camoufage? Arendt believed that folk poetry avoided questions of authority by virtue of being commonplace (Storey 2015, 883). When it comes to articulating the new, this offers the advantage of obscuring its arrival. But the aisling is not only poetic; it is prophetic poetry. By showing that our grasp of time can be reordered, prophecy makes plain that time is constructed. In this way, “prophetic poïesis” effectively “opens a dimension of freedom towards the future” (Franke 2011, 56, 58). Describing a future that both infuences and depends upon decisions in the present opens a space within existing time and leaves its reintegration up to actors and spectators.While the aisling form evolved over time, the version Pearse employed addresses its hearers as fgures already implicated in struggles around authority. Sovereignty is not secured by the Proclamation then any more than

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Virgil’s Aeneas becomes founder by prophecy alone in the poem Arendt considered an exemplar of ancient founding. Both rest on the willingness to identify with a particular destiny and act in ways that make it true.

Sacrificial Violence and the Epitaphic Task The violence that surrounded the Proclamation poses an immediate problem. Because it poses the question: Did the signatories secure the founding with their deaths? And they didn’t just die for the cause; they killed for it too. Machiavelli suggested a certain ruthlessness was required in founders, as the task involves “reprehensible actions” that only a successful outcome can redeem (1970, 132). But Pearse goes beyond Machiavelli to actively recruit death into the national effort.There is a long tradition in Ireland of using mortality to shame an adversary into negotiations. Early Irish law recognized fasting as a legitimate method for demanding satisfaction of a complaint (Stacey 2007, 27).Anyone on the receiving end of such a complaint, who failed to resolve the dispute, would be held responsible for a death.The execution of the Proclamation’s signatories was followed by a wave of hunger strikes and deaths among political prisoners that prolonged the trauma of the Rising.9 Death interrupts normality, forcing observers to fnd ways to encapsulate trauma and restart normality. While the effect can work like an accelerant on the founding experience, it leaves important questions of authority unresolved. The readiness to sacrifce themselves for the Republic-to-come was seen by at least one of its authors as the source of the Proclamation’s authority. Graves, Pearse suggested, hold an unquenchable power of political resistance.“Life springs from death,” he declared,“and from the graves of patriot men and women spring living nations.” Each death for a cause, in other words, serves to bank energy against a future effort because those deaths hold some power over later generations. Shortly before the Rising, he made this idea explicit by saying:“There is only one way to appease a ghost; you must do the thing it asks you.The ghosts of a nation sometimes ask very big things; and they must be appeased, whatever the cost” (1952, 136–7, 221). Pearse was a devout Catholic with messianic leanings, who felt his own death would echo past sacrifces (Dudley Edwards 1977; Augusteijn 2010).10 One of the ghosts Pearse had in mind was Robert Emmet, executed for leading a failed rebellion in 1803. Emmet issued a lesser-known Proclamation of Independence in his own doomed uprising, but he is primarily known for his “Speech from the Dock” at sentencing. In it, he famously declines an epitaph on his tomb, saying none present could “vindicate” his cause or that of Ireland. But vindication will come, he maintained, and “Then, and not till then” should his epitaph be written. This ban is loaded. Emmet requests the “charity of … silence” in such a way as to invite succeeding generations to make his epitaph possible (Madden 1857, 194). This suggests that the 1916 Proclamation should be understood as an attempt to

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fll the gap left by earlier sacrifce, while it aims at harnessing the same energy for its own effort. But note that Emmet’s legacy involved not just dying for a cause but the denial or deferral of mourning. This suggests the epitaphic task is central and, when disrupted, casts a long shadow. Incomplete or interrupted mourning, as Bonnie Honig suggests, releases something predemocratic into the mix – something “Homeric” and “excessive.” Creon’s attempt to forestall Antigone’s mourning, she explains, unleashes forces that collapse the system on which his sovereignty rests. In Honig’s account, epitaph grounds the world anew because it “substitutes” a more disciplined form of mourning for the disorganized indulgences of the Homeric world (2013, 102–3, 109). Epitaph represents the effort to fnd ftting language to express or bind up loss. Death creates an interpretive vacuum for the living. The need to address this vacuum, and to process the loss and manage the energies it sets free, draws together a group based on their readiness to affrm or construct meaning in the face of disorientation. In this way, healthy grief heals what has been broken, moving the bereaved from trauma and loss to a place where they can begin again. Founding energy therefore comes not from death but from a community’s role in its interpretation. The Proclamation attempts to reverse this process. The narrative it develops unearths the dead and calls on its audience to re-experience the terrible excess of energy that results from interrupted love.The insurgents provide fresh deaths for the process and, like Emmet, make independence a condition of moving past this pathos.Those whose lives had been touched by the losses that the Proclamation addresses become its natural audience, with a stake in how it might sublimate death and defeat. By how they spend, or expend, their body, in other words, an actor can upset the course of political commitment. Melissa Matthes sees this agency in the rape of Lucretia story associated with Roman founding. Lucretia’s carefully calculated suicide after violation by a tyrant derails the erotic bond, and she becomes “the female pharmakon … both the source of disruption and of the return to order.” By setting the terms for her own epitaph and demanding a new order of accountability,“Lucretia’s suicide is generative” (Matthes 2000, 31, 39).11 Or as one author explains with regard to the Rising:“power over himself … gives the ascetic authority over others” (Kiberd 1995, 209). Yet sacrifcial violence is not exclusively self-regarding. Virgil’s prophetic founding features sacrifce, but in this case, the narrative ends abruptly after “pious”Aeneas needlessly kills a surrendering rival.The silence that follows bring readers to their “interpretational limits,” Michèle Lowrie explains, facing them with the possibility that “violence among men” is sometimes “no more or less than violence among men” (2005, 964, 970).Attempts to intellectualize or instrumentalize sacrifce miscarry, because by its very nature, sacrifcial violence “alternates between structure and chaos” (Goldhammer 2005, 24). Even Aeneas’ victory comes at a cost:The Trojans are forgotten and Rome born instead, revealing a dual

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message in the Aeneid: Sacrifcial violence can affrm a cause but also redirect it. The deciding factor is how we remember. This insight may help explain the modifying effects of sacrifce seen in the American case. The American revolutionary generation faced its own sacrifces, and the Declaration’s signatories certainly put lives at stake as well. But the association of the Declaration with sacrifce was affrmed when Lincoln credited the Union dead with further sanctifying the founding. Lincoln’s address at Gettysburg has been described as a moment of “political poetry” that “altered the document from within.”Yet in it, Lincoln actually declines the epitaphic task.The omission, like Emmet’s, is crucial; it displaces the workload to his audience by insisting “the task left by the dead must be taken up” (Stow 2007, 203;Wills 1992, 38, 53). Notably, Lincoln’s Emancipation Proclamation raises similar questions to those in declaratory founding, for it’s not entirely clear whether he had the constitutional authority to issue it (Levinson 2001). If understood as an invocation rather than legislation, however, Lincoln’s measure stands or falls not on its constitutionality but on its ability to recruit believers. Lincoln reanimates the American founding, in other words, by political poetry that calls on the living to memorialize the dead. By leaving the epitaphic task unfnished, Lincoln activates a powerful political resource. Grief helps us recognize our connection to others and the fragile constitution of the self.Those who try to avoid its demands fnd that grief becomes more rather than less disruptive, making our failures in this regard especially troubling (Butler 2004).When the cause of death is self-inficted or avoidable, it delivers even greater shock, carrying the capacity to affrm or disrupt the community that surrounds it. When it is both public and sensational, the effects are further amplifed. K.M. Fierke suggests that political self-sacrifce should be understood as a form of communication, a singular “speech act” situated within a complex language game where meaning is developed conventionally through custom and interpretation. If we focus only on the intentions and interests of isolated actors, we miss this point and political self-sacrifce looks irrational. Because they act “as if ” a different game was in play, Fierke suggests that the martyr’s actions make an “anti-structure” come to life, supplying an alternative set of meanings for a community and opening the game of politics to new possibilities (2012, 2, 6, 10, 60). Michelsen believes that in making such actions intelligible, Fierke has rendered them less authentic, eliminating what makes them potent. Rather, by manifesting the “groundlessness” behind all law, such actions introduce a “fatal rupture” into the social order that interrupts conventional life (Michelsen 2015, 94, 96). The demands of the dead upon the living therefore impose a kind of halt or pause on everyday existence. While Arendt associates the capacity for beginning with natality, she does not exclude death from the world of action. Using Achilles as her example,Arendt suggested that by “summing up all of one’s life in a single deed, so that the story of the act comes to its end together with life itself,” an actor can become “the hero par excellence” (1958, 194).12 Mastering one’s own story is an act of rare distinction

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for Arendt and signals a life of great passion or ability visited by “extreme loss” (Wilkinson 2004, 84). Still,Arendt has a warning for would-be Achilles.Trying to conduct one’s life as a great story is not the same as making a great story out of the life one gets. The former betrays the world through escapism; the latter remains loyal to experience (Arendt 1968, 97). The problem facing democracy then is that, despite Arendt reminding us we may do many things with our life, what we do with our death often gets the most attention.The effect may be particularly acute in the modern age. As Jesse Goldhammer observes, “in a world increasingly bereft of sacred places and sublime acts, political sacrifce enthralls” (2005, 197).This suggests we should understand the Irish uprising as an effort to imbue the Proclamation with a signifcance found only in human life. If so, its authors did not need to be blind to their actions in the founding, or forget their hand in it. All they needed was clear-headed resolve. Yet in celebrating sacrifce, is the Proclamation falling back on the sacred and extraordinary? Although it suggests this formula, it would be wrong to conclude that unilateral action can bootstrap a founding into existence. Self-sacrifce can convert subjectivity into spectacle but always involves surrendering the capacity for action to others. Sacrifce can offer, in other words, but cannot deliver; it must be incomplete to be redeemable.This sets up a system of deferrals that displaces authority at any given moment.When grief is used to renew this cycle it makes founding disorderly but not exceptional. Any authority arising in this manner remains dependent on interpretation, a task assigned to those left behind. Because history and sacrifce in the Proclamation can amplify but not oblige, the Irish document leaves open the question of authority that the American Declaration aims to close.

Poetry and Law One of the distinguishing features of the 1916 Rising was the number of antiquarians leading the action. The Gaelic revival had brought many of the rebels together around a commitment to the recovery of Irish language and tradition. The portrayal of Ireland in the Proclamation, as an old woman calling on the people to claim the powers of sovereignty through a show of valor, has roots in the same legal tradition that sanctioned fasting as a form of public complaint.13 Early Irish “Brehon” law was already an ancient practice by the time it was written down in the seventh century, and some form of this law continued until the seventeenth century when English common law was imposed throughout the island. The very earliest, pre-Christian form of the law developed in a society with a multitude of minor kings but no centralized state. It was self-enforcing, self-policing, and practiced by expert professionals who carefully regulated their craft.14 Brehons or flid were jurists who served as part of a kingly household or operated freelance with standardized wages.The centerpiece of their craft was the

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ability to render judgment in poetic form. In the absence of a powerful state or sovereign to settle law by decree, the specialized speech of the poet-judge served as the living repository of judicial knowledge on the island. In addition to being a talented poet, the fli was required to master an extensive body of myth and maxim. Versifed, rhetorical, or just plain clever Brehon speech – the most distinctive form was known as rosc – amounted to the “language of legal authority” in early Ireland. Rosc was at turns “instructional, admonitory, mysterious, mocking, prophetic, riddling, and even firtatious” (Stacey 2007, 11, 100–1). Its inherent orality gave rosc a special performative power.While the well-trained jurist was a master of their craft, their ruling formed part of a larger pattern of community practice and rested on little more than affliation to that tradition.The singular and well-honed craft of the jurist thus combined with the “embeddedness” of the practice within a given community.The fli was expected to master the world of speech because language was recognized as an especially tricky instrument. Riddles were commonplace among rosc teachings for this reason; they served “to underscore the limitations of human knowledge.”Thus early Irish law refects: “the creative, fuid, and inherently risky nature of the event,” including “the very real possibility of failure” (Stacey 2007, 14, 48, 152). In the absence of an authorizing power, the poet-judge needed to be able to summon authority from his or her surrounds.15 A ruling was never a rote restatement of standing law, so to have any credibility, it demanded a singular act of verbal virtuosity. That meant drawing on tradition while delivering something perfectly suited to the moment. Importantly, the performativity in this speech was neither pre-authorized nor self-authorizing. Its power “stemmed from its being both rooted in the present and capable of transcending it,” requiring the jurist to “overlay the fragile tensions of the moment with the (seeming) stability of the past” until “participants act within a tradition they simultaneously help to construct.” The task of the jurist is to summon the community to this moment with eloquence and persuasion, but the community “must grant authority to the transformation taking place” (Stacey 2007, 89, 128). Robin Chapman Stacey suggests that early Irish law teachings were customarily given in the voice of mythical fgures because the displacement of voice through “poetic masking” played a critical role in the practice of law. Such masking “clarifed and focused attention on the message” and “authorized the voice of the individual poet” by embedding their speech in tradition. Masking worked to both “constrict” and to “liberate” voice from its specifc moment, giving it a timelessness that augmented its standing. Practitioners would “assume the identity of a mythical or historical poet” as a way to bring both past and present together (Stacey 2007, 86). Poetic masking also signaled the prophetic role implied in the exercise of judgment, and the importance of law as sacred speech expressing truth (Simms 2007, 127). Because it displaced voice, scrambled authority, and muddied agency, prophetic voice served as a vehicle for the claims of law.This link to the mystical was not a leftover from primitive times; it was integral to how authority was tapped into.

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In taking on the task of constituent power, the authors of the Proclamation found themselves facing a problem with echoes in the early Irish context. T.M. Charles-Edwards explains that early Irish law represents a radically unfamiliar mode of law for moderns. He warns that historians get “entangled in a snare of their own making” when they “construe law as a system of commands expressing the will of some legislator.” By contrast, the chief characteristic of early Irish law is the absence of a legislator who speaks law into being.16 For the fli’s judgments to be effective,“the law must persuade for it can rarely compel” (Charles-Edwards 2005, 368). Because law is an expression of the community itself, when law arises or changes under this system, it is already an inside job.The effort to associate the Proclamation with an evocative but privileged form of customary law may have held appeal for traditionalists, but that still does not explain why poetry served as a powerful form of legal utterance and why the effect transfers to a modern setting.

The Ditch of Language The Proclamation cannot be accounted for as a performative, even of the peculiar kind associated with the American Declaration. It lacked the instantaneous timing, the formalities of representation, and the camoufage of popular endorsement. And it opts out of the formal tone and catalog of injured rights that characterize the American document. Instead, it is self-consciously provisional – an imaginative, emotive address, laden with issues of death and sacrifce. In place of external authorization or established procedure, the Proclamation was consciously creative. In place of necessity, it accepts uncertainty, and the authors acknowledge that they can assure nothing beyond the message itself. While the content, personalities, and history of the document suggest poetic qualities with deep roots in Irish legal tradition, can this element be distinguished from a performative dimension associated with modern founding? Alternately, do the poetic qualities of the Irish document suggest ways to think about performativity at its operational limits? Identifying a boundary between the performative and poetic is no easy task. Performative speech has roots in a single pioneering theory, while poetry is notoriously diffcult to defne.17 How can we know when we have crossed the boundary that Austin associated with reliable performatives into his unstable category of insincere speech? Imagery and emotion provide indicative, but not conclusive, evidence. However, if poetry is also distinguished by its readiness to go into Derrida’s ditch of language where certainties break down, then it works in a different manner than conventional performatives. Indeed we fail to take something as poetry if we read it solely as performative utterance. But the failure here is not that we took poetry too seriously, but took it seriously in the wrong way. If poetry operates in a zone of linguistic “misrule,” this makes poetry self-limiting, but not powerless. The appropriate test of its “integrity” lies with its audience, who assess its value (Mole 2013, 66, 69, 70). That’s why it can begin with little

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more than subjectivity behind it. Unlike performatives, which founder on the issue of authorization and intent, Christopher Mole explains: there is, in fact, nothing paradoxical about these diffculties of self-established authority being overcome, when they occur within the context of poetry … when the poet presents something as praiseworthy, we do not take his word for it. By presenting us with praises in the form of poetry, he invites us to interrogate the justice of his words. (2013, 69)18 Derrida saw poetry in a similar light, calling it “a demand” arising “beyond language” to learn something “by heart” so that it “constitutes you” (1991, 223–9). There is, in other words, something exhortative in poetic language because it elicits action rather than constitutes it. The Proclamation contains an explicit call to action framed in emotive imagery, but this isn’t what secures its poetic quality. It is poetic for how it addresses itself to its audience – as something self-consciously creative, where signifcance and integrity will be determined by its audience. The frst action it calls for, therefore, is its own consideration. Because it invites us to see the familiar in a new light, poetry is an especially potent form of speech when it comes to initiating change. Still it is generally regarded as ill-suited to political purposes, being concerned with beauty over persuasion. In addressing itself to the heart, doesn’t poetry forego political salience? The Proclamation, however, is primarily addressing sacrifce. Love that can only be experienced as grief demands a “new normal,” a release that the document carefully avoids delivering. To recall an audience to this experience of loss, the Proclamation makes love and longing into instruments of persuasion.19 The Proclamation did not require superhuman authority or immediate endorsement then, so long as it could, in time, awaken or form impressions powerful enough to generate a response. Since the full measure of poetry comes after the fact, it operates within time in a different manner, drawing on an amalgam of temporality from memory to anticipation.While it reveals a particular self, poetry is ultimately memory crystalized into form. A poem is a thing crafted to leave a trace, one that can outlive the moment that inspires it, along with the poet who gave it voice, by addressing itself to an audience yet to be. Because the poet is a “crafter” not “doer,” poetry conveys “the experience of action” in all its freedom “without once-and-for-all explaining” it (Hammer 2002, 143). Poetry is an especially robust form of speech, surviving in environments that shrivel the average performative, but this does not make it foolproof. When poetry celebrates death and sacrifce, it shares the same problems as all grief and violence; it resists taming to specifc purposes and invites excess.The 1916 actions eventually won popular endorsement, but in a country where law has deep roots in poetic speech, it seems relevant to ask: How did the poets judge

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the Rising? W.B.Yeats, who knew the executed leaders including Pearse, pointed out a faw in the Proclamation’s strategy. His poem “Easter 1916” contains the lines: “Too long a sacrifce/Can make a stone of the heart” (1974, 93). While they had transformative force and terrible beauty,Yeats found the rebel’s actions excessive. His contrast in the poem between the stone heart of past sacrifce and the ongoing world as a living stream that pours around it makes clear where his loyalties lie.Yet his memory is troubled by the events, so he begins the work of examining their potential. By framing their actions in the language of love and memory, and by calling on their audience to weigh their claims for themselves, the authors of the Proclamation avoided posing it as a pre-authorized or even self-authorizing act. But to have a place among the living, it must fnd a sympathetic audience because the claims of the Proclamation go empty without persons to renew them.And that means Irish contemporaries had to either accept the silence of loss that followed the spectacle of sacrifce or recoup its meaning for themselves. Seamus Deane explains that the task of interpretation is bound up with authority. “Ultimately, the function of interpreting meaning … of claiming that the anarchic is impossible, that everything belongs to a system” generally “belongs to the state” (Dean 1997, 183).20 Opposition to that order is therefore irrational. By staking a claim to consideration, the Proclamation means to upset this system. The “process of verifcation” that redeems what at frst seems irrational or erroneous, Umberto Eco says, is the work of “the Community,” which must “always remain aware of the fallibility of our learning” (1998, 19–20). If both poetry and politics require us to adopt an interpretive stance, this may provide a way to close the gap between the performative and poetic elements of founding speech.Austin never succeeded in completely defning the category and fnally concluded that in some instances there was an insurmountable problem of interpretation because so much depends on the speaker’s state of mind (1975, 79–81, 88).Austin’s account of performatives therefore runs out just where poetry begins. For poetry: “derives power from the diffcult circumstance that we need to live beyond our intellectual means, the fact that we must always project our commitments beyond what, strictly, we know.” It occurs “precisely where ordinary and literal language gets frustrated”; indeed, it “thrives” at “these margins” (Fleischacker 1996, 114, 124). It could be that poetic speech, at least insofar as it proves generative, is an extreme and untamable mode of performative, a way of constituting the world and its inhabitants even when it’s not clear how or why. This capacity to create, even in the absence of stable constatives or established authority, would make it especially suitable for founding. Consider, for instance, Derrida’s claim that the American Declaration contains a fable that scrambles time and unsettles authorization. In describing poetry a few years later, he suggested that “fable” can be understood as “the gift of the poem” (1991, 227). If that is the case, and if no sharp line exists between poetry and performatives, it should also be possible to read the

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American Declaration for its poetic elements and in the process disarm Arendt’s claims about its performative completeness or blinkered creativity. There is, however, a danger of overstating the power of poetic speech. Poetry shares the same limitations as all speech and is no more miraculous than performatives. Percy Bysshe Shelley, inspired in part by Robert Emmet, described poets as “the unacknowledged legislators of the world,” but W.H.Auden demurred saying, “poetry makes nothing happen.” The passage appears in Auden’s memorial poem for Yeats which addresses the Irish poet’s legacy, including his role in 1916 events. Auden characterizes the decline of the body at death as the passage from personhood to collective memory, so that in the end, both Yeats and his poetry can never be the same again. In this light, poetry is a way of speaking – nothing more (Auden 1979, 80–2).The action is elsewhere, with the living. Like the dead, poetry has no agency of its own; only our remembering gives it life.

Conclusion For reasons of timing alone, the performative model based on the American Declaration cannot account for a document like the Irish Proclamation. Because it emerged from a clandestine process and was not immediately adopted, it could not beneft from the same softening and obscuring effects used to explain the American document. In that instance, Derrida’s “undecidability” comes about because we are unable to say for certain whether the people are frst free and then describe their situation, or whether a Declaration constitutes them freeing themselves (1986, 9). Retroactivity is similarly instantaneous. It operates as a kind of boomerang effect:The same energy that launched the Declaration simultaneously generates its self-authorization. But in the Irish case, these effects are separate and endorsement came as a delayed reaction. A similar problem appears with Arendt’s “blind worship” of founding documents since the Irish Proclamation was met with more amazement than endorsement.This response moderated over time, yet cannot amount to the effect Arendt describes because timing is again crucial. Instantaneous worship of the American Declaration in the form of constitutional fervor spares the authors having to face the radical newness of their actions.The authors of the Proclamation did not have this luxury.While a performative model obscures the tensions and imperfections of founding, the mystifcation it requires was never an option here. Instead the Proclamation faced up to these tensions and places the question squarely before its audience to resolve. Could it be that by taking the American Declaration as their reference case, theories of founding have underestimated our capacity to undertake the task in a self-conscious manner? The poetic element in the Proclamation suggests an alternative view of founding speech.Addressed to a collective self, the Proclamation’s work couldn’t rest with the insurgents alone and must resonate with a national audience. In issuing a call, the document aims at imposing a task on its audience in much the

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same way that Lucretia’s suicide places a demand on her family.The task begins with making sense of the message and the baffing actions that accompanied it. This need for interpretation binds author and audience together in an extended exchange, making the power to constitute diffuse rather than dictatorial and evoking the distributed authority of early Irish law, but also, to an extent, the compound authorship of the American Declaration. In effect, the Proclamation solves the problem of authority by conceding that as a founding it will be about as authoritative as its respondents decide it should be.This makes the answer to Derrida’s question concerning the American Declaration embarrassingly simple in the Irish case: Who speaks or signs? Pearse and his fellow conspirators. But while they produce an historic document, it takes an interpretive community to make it a founding. The Irish experience shows that founding speech can be partial or incomplete without being ineffective and that even in a modern setting, its potency remains divided between the original document and its lived response. Granted, the Proclamation is not poetry in a conventional sense any more than the American Declaration is a conventional performative. Both put an idiom to new purposes. The difference is that in poetic speech the pivot around which founding turns is subjective rather than absolute and resolution is arrived at through interpretation rather than confusion. The Rising was an extraordinary event that amounted to very little without subsequent endorsement and transformation.The movement between extraordinary and ordinary in this case is driven in part by the vagaries of speech. Because it must be shared to be effective, language struggles against the unique experience of a subject and the insincerity that attaches to repeatability. This liability shows up most clearly with performatives. Poetry, in contrast, thrives on subjectivity and makes repeatability a vehicle for expressing and preserving the ephemeral, but there’s a price. Poetry leaves the question of seriousness up to its audience. Like the sacrifces that accompanied the Rising, poetic speech must either be taken to heart and examined or abandoned to futility and incoherence.This is why founding speech in the Irish case avoids the semblance of performative completeness and resists political closure. The Proclamation didn’t create sovereign power, and it didn’t speak on its behalf, but it did call the Irish back to their capacity to constitute something of their own accord.With the subsequent mobilization for independence, the document arrives at its status as founding speech. In place of rupture, the Proclamation opens a small tear in the fabric of authority and leaves the rest to time.The process cannot determine who answers the call or how. The state that emerged did not include all those the Proclamation addressed, and the egalitarian ideals it held out have never been fully realized. In this regard, the Proclamation doesn’t evade contingency or deliver fawless legitimacy. But it doesn’t make founding rest on these conditions either. Contested boundaries remain an important part of the Irish story, although the Proclamation’s orientation toward calling on, rather than

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speaking for, the people allows the outcome to be a different geographic and demographic shape than the document anticipates. If, as this suggests, we understand the Proclamation as a call issued against some future order, then the success of that speech should be measured against the ongoing response and not its immediate reception.The capacity for the Irish to revise their response and eventually all but forget their initial reaction seems less anomalous from this point of view. Understood in this way, founding speech becomes a living practice where meaning is established conventionally, through a combination of action, interpretation, and response. The Proclamation is unlike other poetry in one crucial regard, however; it cost lives. The idea that chaos and excess is endemic to founding can become dangerously fatalistic. It is important to ask, therefore, are there alternatives to the violence that accompanied the document? If the effect of death is to amplify the call on others, demanding attention for the lives at stake, might we approach the problem of violence at foundings by becoming more attentive to the lives around us? By becoming, in effect, better listeners, might we heed the beauty in other lives – and the potentiality of our own – in life, rather than after it? In part because of its troubling associations, the Irish Proclamation offers an important lesson about founding: No matter how it starts, we are responsible for how it turns out. Seen in this light, foundings remain an open call on the present. If we authorize a founding by endorsing some image of it, then it remains a work in progress, and even its sacrifces can be reevaluated.We never lose responsibility for the form response takes, much as we never lose the capacity to reframe it. The Proclamation was issued, de Paor says, “to call on the people of Ireland to make up their minds fnally to be free” (1997, 72). A view of founding speech that remained hidebound to an image of blood sacrifce would fail this standard. As Harold Bloom suggested, strong poetry can empower but also overwhelm; the challenge is to live with but not under its infuence (1973, 147).

Notes 1 The text is available at: https://repository.dri.ie/catalog/j673dj18x. 2 Ferriter calls the insurgents “strangely unrepresentative of national sentiment” (2005, 111). Despite a long-standing revolutionary tradition, the leading nationalist movement of the period was wary of military action as popular sentiment still largely favored constitutional nationalism (Boyce 1996). As one Rising participant said of the period: “Home rule was in the air. The overwhelming majority of the people supported Redmond” (leader of home rule parliamentarians), although the mood “gave way to despair” as the war in Europe continued (FitzGerald 2003, 3). 3 At the time of the Rising, more than 150,000 Irishmen were in active service with British forces, of which 100,000 had joined since August 1914 (Lyons 1971, 359). 4 The insurgents planned to use a mobilization of local militias as cover for the Rising, but the plan was discovered and the mobilization cancelled.A German arms shipment was also intercepted, leaving them with insuffcient weapons or combatants to launch a viable offensive.The futility of proceeding did not escape the participants.When asked what chance they had of success, one leading fgure reportedly said:“none whatsoever.”

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6 7 8 9

10 11

12

13

14

15 16

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Another reports him as saying, “we are going to be slaughtered” (Ferriter 2005, 142; Sweeney 1993, 425). At least for those in the southern counties (plus Donegal) that form today’s Irish state, the Republic declared in 1916 forms the moral and political backdrop to Irish affairs.A copy of the Proclamation is on display in the presidential residence, and former president Mary McAleese suggested the country “would do well to ponder” how much was owed to “the words of that Proclamation” (McAleese 2007, 25). British and Irish authorities fnally came to terms in the 1921/22 Anglo-Irish Treaty, albeit at the price of dividing the country. The text is available at: www.difp.ie/docs/1919/Declaration-of-independence/1.htm. It’s not known for sure how the Proclamation was drafted, although it is generally thought that Pádraig Pearse was the primary author. Labor leader James Connolly is credited with signifcant contributions. Among the most prominent deaths was Thomas Ashe, a Rising commander who died from force-feeding.As many as 9,000 Irish prisoners went on hunger strike in the years following the Rising. In the 1980s Irish Republican Army (IRA) prisoner hunger strikes led to ten deaths, reenacting a tradition wherein fasting constituted a “jurisgenerative act” with “judicial signifcance” (Devlin 1996, 169–70). The Church’s opposition to political violence and suspicion of socialism meant the Rising was at odds with conventional Catholicism, and clergy initially called it a “shocking and idiotic tragedy” (Keough 2007). Reacquaintance with grief is especially potent, Paul Kahn explains, because political power arises “when individuals recognize in themselves a capacity for sacrifce.” But this power is bound to particular bodies.We need love and desire to ensure we move through this particularity to shared meaning.“It is not consent,” Kahn maintains,“but eros that links us to the polity and each other” (Kahn 2008, 233, 287). Arendt suggests that instead of being conveyed piecemeal throughout a normal life, self-disclosure can be achieved in one extraordinary moment that consumes the actor in their own deed. The catch is the action must be fatal. The actor must: “expressly choose, as Achilles did, a short life and premature death.” For:“Only the man who does not survive his one supreme act remains the indisputable master of his identity and possible greatness, because he withdraws into death from the possible consequences and continuation of what he began” (Arendt 1958, 194). Myths of Irish kingship involved marriage to an old woman representing the land, who transforms into a young bride at the arrival of a true king (Eichhorn-Mulligan 2006).A later version of the myth appears in English literature featuring hidden identities and a riddle challenge.Whereas in the original myth, the feminine stood for nature, land, and the mysteriously nonrational, in the later myths,“she comes to stand for the unreasonable” (Aguirre 1993, 280). Self-enforcing does not mean voluntary. There were several avenues to ensure judgments were followed, including progressively recruiting the local community as witnesses to the affair.Those who refused to comply faced a society arrayed against them as a deviant, as well as a plaintiff authorized to extract compensation by force if necessary. The law texts contain a number of judgments attributed to a fctional female jurist, whose rulings concern women and women’s rights. As Dáibhí Ó Cróinín notes “there is not a single Irish law-tract that is associated formally with a ruler, and only one solitary text out of the entire surviving corpus mentions the name of a living historical king.” Instead of drawing authority from specialized authorship, the Irish system was, he explains, strikingly “performative” (2017, 24, 27). Robert B. Pierce thinks poetry belongs among “family resemblance concepts … having no necessary and suffcient attributes, no set of qualities that sharply delimit the meanings of the concepts” (2003, 152).

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18 Linda Zerilli raises a similar idea when she suggests that aesthetics expresses “anticipated agreement” without recourse to fnal argument (2005, 172). 19 Poetry’s allegiance to subjectivity “trains us to fnd interest and value in the lives of others” and “to be moved by the spirit of wonder we feel when contemplating our own” (Kronman 1999, 331). Walt Whitman believed this quality could be used to “enact a new reality,” suggesting that a critical element in poetry involves the celebration of freedom found only in the self (Frank 2007, 410, 426). Leigh Jenco is describing a similar idea when she explains with regard to Chinese efforts at founding that “self aware individuals” are the “pivot of transformation” around which founding turns (2010, 228).The poet also fts the description of the Schmittian sovereign if he is thought of as a “mad gambler” whose exceptional decision “always takes the form of an appeal” issued “from a position of uncertainty” (Reilly 2016, 166). 20 Bonnie Honig sees a similar theme in Sophocles’ Antigone, where sovereignty for Creon amounts to “a quest to own the power of defnition … to control the dissemination of meaning” down to the grave (2013, 140).

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Dudley Edwards, Ruth. 1977. Patrick Pearse:The Triumph of Failure. London:Victor Gollancz Ltd. Eco, Alberto. 1998. Serendipities: Language and Lunacy. New York: Harvest Books. Eichhorn-Mulligan, Amy C. 2006. “The Anatomy of Power and the Miracle of Kingship: The Female Body of Sovereignty in a Medieval Irish Kingship Tale.” Speculum 81 (4): 1014–1054. Ferriter, Diarmaid. 2005. The Transformation of Ireland 1900–2000. London: Profle Books. Fierke, K. M. 2012. Political Self-Sacrifce: Agency, Body and Emotion in International Relations. Cambridge: Cambridge University Press. https://doi.org/10.1017/ CBO9781139248853. FitzGerald, Garrett. 2003. Refections on the Irish State. Dublin: Irish Academic Press. Fleischacker, Samuel. 1996.“Poetry and Truth-Conditions.” In Beyond Representation, edited by Richard Eldridge, 1st ed., 107–132. Cambridge University Press. https://doi.org/10 .1017/CBO9780511627897.005. Foster, Roy. 1988. Modern Ireland 1600–1972. London:Allen Lane. Frank, Jason A. 2007. “Aesthetic Democracy: Walt Whitman and the Poetry of the People.” The Review of Politics 69 (3): 402–430. https://doi.org/10.1017/S00346 70507000745. Franke, William. 2011. “On Doing the Truth in Time: The Aeneid’s Invention of Poetic Prophesy.” Arion – A Journal of Humanities and the Classics 19 (1): 53–63. Goldhammer, Jesse. 2005. The Headless Republic: Sacrifcial Violence in Modern French Thought. Ithaca, NY: Cornell University Press. Hammer, Dean. 2002.“Hannah Arendt and Roman Political Thought.” Political Theory 30 (1): 124–149. Honig, Bonnie. 2013. Antigone Interrupted. Cambridge: Cambridge University Press. Jenco, Leigh. 2010. Making the Political: Founding and Action in the Political Theory of Zhang Shizhao. Cambridge: Cambridge University Press. Kahn, Paul. 2008. Putting Liberalism in Its Place. Princeton, NJ: Princeton University Press. Keough, Dermot. 2007. “The Catholic Church, the Holy See and the 1916 Rising.” In 1916:The Long Revolution, edited by Gabriel Doherty and Dermot Keough, 250–309. Cork: Mercer Press. Kiberd, Declan. 1995. Inventing Ireland: The Literature of the Modern Nation. Cambridge: Cambridge University Press. Kronman,Anthony T. 1999.“Is Poetry Undemocratic?” Georgia State University Law Review 16: 311–335. Levinson, Sanford. 2001. “Was the Emancipation Proclamation Constitutional? Do We/ Should We Care What the Answer Is?” University of Illinois Law Review 5: 1135–1158. Lowrie, Michèle. 2005. “Vergil and Founding Violence.” Cardozo Law Review 27 (2): 946–976. Lyons, F.S.L. 1971. Ireland since the Famine. Glasgow: Fontana Press. Machiavelli, Niccolo. 1970. The Discourses. Translated by Leslie J. Walker. New York: Penguin Books. Madden, R.R. 1857. The Life and Time of Robert Emmett. New York: P.M. Haverty. Matthes, Melissa. 2000. The Rape of Lucretia and the Founding of Republics. University Park, PA: Pennsylvania State University Press. McAleese, Mary. 2007. “1916 – A View from 2016.” In 1916:The Long Revolution, edited by Gabriel Doherty and Dermot Keough, 24–29. Dublin: Mercer Press. Michelsen, Nicholas. 2015. “The Political Subject of Self-Immolation.” Globalizations 12 (1): 83–100. https://doi.org/10.1080/14747731.2014.971540.

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Mole, Christopher. 2013. “The Performative Limits of Poetry.” The British Journal of Aesthetics 53 (1): 55–70. https://doi.org/10.1093/aesthj/ays061. Pearse, Padraic H. 1917. Collected Works of Padraic H. Pearse. Dublin: Phoenix Press Company. Pearse, Padraig. 1952. Political Writings and Speeches. Dublin:Talbot Press Ltd. Pierce, Robert B. 2003.“Defning ‘Poetry.’” Philosophy and Literature 27 (1): 151–163. Pittock, Murray. 1994. Poetry and Jacobite Politics in Eighteenth Century Britain and Ireland. Cambridge: Cambridge University Press. “Proclamation.” 1998. In New Oxford Dictionary of English. Oxford: Oxford University Press. Reilly, Jack. 2016. “The Sovereign Wears No Clothes! Defrocking Carl Schmitt’s Political Theology.” Constellations 23 (2): 160–169. https://doi.org/10.1111/1467-8675.12177. Simms, Katharine. 2007.“The Poetic Brehon Lawyers of Early Sixteenth-Century Ireland.” Éiru 57: 121–132. Stacey, Robin Chapman. 2007. Dark Speech: The Performance of Law in Early Ireland. Philadelphia, PA: Pennsylvania State University Press. Storey, Ian. 2015.“The Reckless Unsaid:Arendt on Political Poetics.” Critical Inquiry 41 (4): 869–892. https://doi.org/10.1086/681789. Stow, Simon. 2007. “Pericles at Gettysburg and Ground Zero: Tragedy, Patriotism and Public Mourning.” American Political Science Review 101 (2): 195–208. https://doi.org /10.1017/S0003055407070189. Sweeney, George. 1993. “Irish Hunger Strikes and the Cult of Self-Sacrifce.” Journal of Contemporary History 28 (3): 421–437. Townsend, Charles. 2005. Easter 1916:The Irish Rebellion. London:Allen Lane. Vattel, Emer, de. 1844. The Law of Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns. Edited by Joseph Chitty. Philadelphia, PA:T. & J.W. Johnson, Law Booksellers. Wilkinson, Lynn R. 2004. “Hannah Arendt on Isak Dinesen: Between Storytelling and Theory.” Comparative Literature 56 (1): 77–98. https://doi.org/10.2307/4122287. Wills, Garry. 1992. Lincoln at Gettysburg: The Words That Remade America. New York: Simon & Schuster. Yeats,W.B. 1974.“Easter, 1916.” In Yeats: Selected Poetry, edited by A.N. Jeffares, 93. London: Pan Books. Zerilli, Linda M. G. 2005. “‘We Feel Our Freedom’: Imagination and Judgment in the Thought of Hannah Arendt.” Political Theory 33 (2): 158–188. https://doi.org/10.1177 /0090591704272958.

5 CANADA’S SECESSION REFERENCE AND THE TRICKINESS OF SOVEREIGN SPEECH

Canada has no declaration of independence and no universally embraced founding moment, making it an outlier among modern nations. The possibility of Quebec secession in the 1990s, however, prompted the Canadian government to seek guidance from its highest court on whether Quebec could, under Canadian law, single-handedly constitute itself as a new state.The result was an unexpectedly creative and generally well-received meditation on the relationship of secession and law, and on when and how popular voice should be heard as a state-making force. What the Court had to do to arrive at this judgment tells its own story about founding speech in the Canadian setting. Rather than outlaw separatism entirely, the Supreme Court argued that the answer to Quebec secession lay deep in Canadian constitutional traditions, embedded in “unwritten postulates that form the very foundation of the Constitution of Canada” (Reference re Secession of Quebec, [1998] SCR 2 217, 250). Seeing a Supreme Court divine foundational principle out of a country’s history is remarkable enough, but when these conditions are taken to furnish a generally applicable framework for declarations of independence worldwide, something unusual has happened. 1 This chapter reads very differently from the previous two because there is no authoritative declaration to explore, and constituent power remains diffuse. Instead, Canada represents an incomplete or irregular founding, because to know how Quebec founding might occur, the Supreme Court frst had to establish how Canadian founding actually did, and that is not an easy task. In the absence of a founding document, the Supreme Court opted to read founding principles out of history. This chapter considers the way the Supreme Court read history and fnds that its story was still decidedly shaped by the idea of a founding moment, ironically one that fails to meet most standards for a political founding and one that defnitely fails the careful criteria set out for a prospective Quebec founding.

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The chapter then adopts the Court’s own methods and reads Canadian history for its constitutive lessons. Starting with a broader view of legal history than the Supreme Court used, the exercise arrives at a different interpretation of the evolution of law in Canada.While it does not identify an authentic version of Canadian origins, the exercise does suggest that the Court’s overly neat account should be viewed with caution. Ultimately, the Supreme Court is correct in insisting that performative speech cannot deliver sovereign effects, but for different reasons than the Court cites. Instead, Canadian constitutionalism is foundationally indebted to the failure of sovereign speech.The Supreme Court based its deliberations on the idea that the Canadian constitutional clock began with Confederation in 1867, but Canada’s long history of legal pluralism cannot be adequately captured in this way. In terms of speech, Canadian constitutionalism has been defned by moments of silence, refusal, agreement, and compact, many of which pre- and post-date 1867. Grounding the Canadian story in 1867 omits this complexity. The chapter begins by looking at the top court’s 1998 advisory opinion on the secession question, followed by its implications beyond the country. Subsequent sections show why Canadian history is an order of magnitude more complex than the Court acknowledged, and why the principles that the Court describes emerged not from Confederation in 1867 but from the often diffcult and disorderly conditions of coexistence before and since. The rendering of Canadian history as a narrative of legal stability supports the idea that law can organize the disorders of beginning. But Canada’s oldest legal tradition offers a different perspective. Indigenous law frames disorder as a constituent force, a concept captured in the fgure of the Trickster that animates Indigenous storytelling. Ultimately the Supreme Court’s emphasis on clarity is problematic because it is at odds with the untidy history of the land and hobbles efforts at political beginning in the name of law as orderliness. But tricksterism also suggests why, in delivering its judgment, the Court itself may have harnessed the out-of-bounds energies of the new.

The Quebec Secession Reference Case What distinguishes the Supreme Court’s advisory opinion judgment from previous treatments of secession is that the Court was explicitly tasked to address unilateral secession.This focus meant that the Court did not concern itself with independence as a global practice, the merits of independence for Quebec, or the status of Quebec peoplehood. Although the discussion generally took place in terms of “secession” not independence, at one point, the Court recognized that the chief instrument for the process under discussion would be a declaration of independence (Reference re Secession of Quebec, [1998] SCR 2 217, 290). The Court did not dismiss the power of this instrument; instead, it held that a unilateral declaration could be legitimate in the case of colonized or oppressed peoples. It might even be achieved as a de facto reality outside the law, although

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this is a high-risk venture dependent upon securing territorial boundaries and international recognition. The Supreme Court held that Quebec did not ft the remedial justice categories of independence and therefore could not, legally, secede from the Canadian union of its own accord. But it also found that the expression of a popular preference for independence could not, legitimately, be ignored by the Canadian state either. This framing shifted the focus away from a declaration as an exceptional moment of speech and toward popular consultation as a way to lay the groundwork for such speech. After two Quebec independence referendums, the second defeated by less than 1%, the Supreme Court basically took a referendum as the default instrument to articulate popular voice. So long as the results delivered “a clear majority on a clear question,” the Court argued that a vote for independence triggered a “duty to negotiate” some way to address these preferences. Putting it even more sharply, the Court found that so long as the process stayed within the bounds of Canadian constitutional values, there was “no basis to deny the right of the Government of Quebec to pursue secession” (Reference re Secession of Quebec, [1998] SCR 2 217, 266). Still, the Court insisted that a vote for independence would have “no legal effect on its own.” Democracy “in any real sense of the word,” they explained, “cannot exist without the rule of law” as a “framework.” They warned it would be “a grave mistake to equate legitimacy with the ‘sovereign will’ or majority rule alone” (Reference re Secession of Quebec, [1998] SCR 2 217, 256). The decision was generally well received, even in Quebec, which had declined to participate.2 The question of secession is nowhere addressed in the Canadian Constitution, and the Court found existing amending formulas were inadequate to the task because the departure of Quebec would amount to a change so profound it would reconstitute the Canadian order. So how did the Court identify the terms for lawful secession in the absence of any legal text or precedent? It argued that the Canadian Constitution was “more than a written text,” and that the exit of one member of the Canadian union demanded “a more profound investigation of the underlying principles animating the whole of the Constitution.”This investigation meant reviewing “the context in which the Canadian union has evolved” so as to know what Canadian constitutionalism stands for in the frst place (Reference re Secession of Quebec, [1998] SCR 2 217, 220, 240, 263). The Court ultimately identifed four principles critical to the Canadian union: federalism; democracy; rule of law and constitutionalism; and respect for minorities. They argued that, while these principles “are not explicitly identifed in the text of the Constitution” and “are nowhere explicitly described in our constitutional texts,” they nonetheless provide “its lifeblood” and “form the very foundation” of the constitution (Reference re Secession of Quebec, [1998] SCR 2 217, 248, 250, 253). The Court described the Canadian constitutional order as “the product of 131 years of evolution,” dating it to Confederation in 1867.The problem is that, while 1867 marked a major expansion of the Canadian state, and the British

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North America Act went on to become the basis of Canada’s written constitution, it was not the origin of the rule of law in Canada. For instance, the Court spoke about “the ancient occupation of the land by aboriginal peoples” as a factor in Canadian law. It also acknowledged their status in the constitution and “their contribution to the building of Canada,” while admitting that Indigenous rights were only “recently and arduously achieved” (Reference re Secession of Quebec, [1998] SCR 2 217, 262). In an earlier case, the Supreme Court had called a 1763 Royal Proclamation a “fundamental document” in Canadian legal history because it framed a special relationship with Indigenous peoples (Borrows 1994, 3). If the Indigenous fact in Canada represents a tradition that predates Confederation and remains fundamental to the evolution of Canadian law, how could the constitutional clock start in 1867? And if 1763 is included in Canadian legal history at one moment, why does it disappear in the next? The Court can hardly privilege 1867 simply because it produced a written document in a judgment explicitly focused on legal evolution and unwritten principle. Yet 1867 effectively defnes the scope of the Court’s constitutional vision. It held that the four principles it identifed are “best understood as a sort of baseline against which the framers of our Constitution” and elected representatives “have always operated.” It explained the absence of any prior articulation of the principles by saying that they would have seemed so obvious to the 1867 framers, that putting them in writing would have seemed “redundant, even silly.” The Court therefore flled in the missing speech by presuming to understand how these men thought, and concluded that for this select group, considerations like representation and democracy were “simply assumed” (Reference re Secession of Quebec, [1998] SCR 2 217, 253). In the absence of any authoritative text on the subject, the Court opted to read the intentions of long-dead politicians and found them good. Good enough, in fact, to base an entire constitutional order upon. Given this latitude in interpretation, it’s hard to avoid the impression that the Court dabbled in, or at minimum built upon, constitutional myth-making in its effort to address the terms of a declaration of independence. In suggesting that foundational principles3 evolved out of 1867, the Court set out to combat the magical powers of founding speech by means of its own creative experiment. As one observer put it, the Court had to “weave a constitutional obligation out of whole cloth” because there was “no obvious textual foundation for such an obligation” (Webber 2015, 260). Because it addresses the terms under which a constitutional democracy might navigate an independence crisis, the Canadian opinion had a broad audience. Observers praised the way the Canadian doctrine worked to “encapsulate” independence efforts in a “sophisticated procedural shell” effectively “taming it by means of law” (Palermo 2019, 266).Thanks to the Canadian Secession case, referendums have become “not only the main but often the exclusive means to address sovereignty claims” (Palermo 2019, 268). Referendums are blunt instruments for aggregating diverse preferences by forcing an artifcially limited choice on an

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electorate, and they are subject to abuse and manipulation that, some feel, renders them unsuited to a consequential decision on independence (Qvortrup 2015).Yet after the Canadian judgment, they also carry tremendous constitutional weight. The relationship of any declaratory founding with law is fraught in the best of cases, and institutions like the International Court of Justice have been reluctant to take a frm position on the question (Vidmar 2011). In effect, the Canadian opinion rushes in where angels fear to tread, ruling out constituent power as an absolute form and bringing secession under the supervision of standing law. But it simultaneously institutionalizes constituent power as a triggering force in the form of a referendum, and that gives the fnding its appealingly “solomonic” fair (Kay 2003, 327). It insists democracy must be allowed a voice; that popular voice must be subject to law; and that order, stability, and continuity must prevail throughout. That makes it a winning formula for a risk-averse international community. The Court’s emphasis on orderliness reads like a ffth principle of Canadian law. A constitution is defned as “an orderly framework,” Canada is described as having achieved independence through “adherence to the rule of law and stability,” and Canadian constitutional history is described as expressing “a desire for continuity and stability” (Reference re Secession of Quebec, [1998] SCR 2 217, 246–7, 260–1). The reason it didn’t appear in the list of principles is that the Court saw orderliness as a meta-principle of law itself.The rule of law, it explained,“vouchsafes … a stable, predictable and ordered society” and provides a “shield” from “arbitrary state action” (Reference re Secession of Quebec, [1998] SCR 2 217, 257). While democracy or minority rights may be normative, orderliness – in the form of continuity, stability, and transparency – is legally constitutive. If orderliness is the hallmark of law in an often disorderly world, and fnding a constitutional process for independence means making beginning into an orderly event, then the Canadian assessment should be broadly transferrable. But does the Court’s “solomonic” fnding survive encounter with a broader swath of Canadian constitutionalism? Or does the formulation rest on the myth of an 1867 founding that excludes some of Canada’s most important and disorderly moments?

A More Profound Investigation It’s helpful to make clear why Confederation in 1867 is a poor candidate for a founding moment. Quite simply, it did not mark the arrival of Canadian independence but rather the continuation of imperial governance in new form. There was no such thing as a Canadian citizen in 1867, and all inhabitants were British subjects of various standing.The new federal agreement was put in place by British legislation, and the “fnal custodian” of the Canadian Constitution remained the Imperial Parliament (Russell 2004, 31–3). As Robert Vipond explains, Confederationists were not “‘founding’ a political state” in the sense familiar from the American example because “in the Canadian case there was no

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self-conscious break with the past.” Instead, politicians went out of their way to emphasize that “Confederation represented continuity,” and that federalism was a “practical or political necessity” (Vipond 1989, 6, 11). Confederation is also not a particularly popular event. While a national survey found that 1867 was the most common overall choice for Canada’s founding event, largely because older, English-speaking Canadians outside of Quebec thought so, it is declining in the popular imagination. Less than half of Canadians under 35 identify it as Canada’s founding, with some preferring 1982s patriation of the constitution (Jedwab 2013). Even the infuential constitutional scholar Peter Russell has doubts about Confederation as a founding moment. He opens his famous work on Canadian constitutionalism by suggesting that Canada is “not yet constituted” and may even be “incapable” of becoming so (2004, 5). Jeremy Webber similarly opens his work on the Canadian Constitution by explaining that “Canada was not constituted by a single act of will or by a set of founding fathers acting in a privileged ‘constitutional moment’” (2015, 1). Still, Confederation has dedicated boosters who insist it is “worthy of our admiration and gratitude” (Vaughan 2003, x).The problem is they can’t agree on its virtues. For Janet Ajzenstat, the architects of Confederation were inspired by Lockean liberalism and parliamentary government (2007, 3). Frederick Vaughan insists they “deliberately and defantly” resisted the forces of the Enlightenment (2003, 5).And Peter Russell notes:“if they had been asked to name a philosophical patron saint it would surely have been Edmund Burke not John Locke” (2004, 11). Ultimately, efforts to associate Confederation with great intellectual movements seem forced and amount to saying it’s possible to read into Confederation some great founding principles.4 While this is effectively what the Supreme Court set out to do, the approach requires us to place a great deal of trust in interpreters to say what these “founders” had in mind. Given that the results of this exercise vary wildly, it’s safe to say the method remains unproven. Being without an identifable founding isn’t the end of the world, of course. While modern constitutions are written and therefore should have an identifable author and point of origin, ancient constitutions emerged from precisely the kind of wrangling and compromise that Confederation typifed.The diffculty is Canada is a modern nation, a defnite member of the new world order not the old one.This makes its credentials tricky either way.As an ancient constitution, it lacks the necessary antiquity. As a modern one, it lacks the great moment of authorship.The Supreme Court tried to part this Gordian knot by retrojecting a set of founding principles to 1867, thereby aligning Canada with the modern model. But its reliance on imperial legal history complicates this effort. If understanding the place of declaratory founding within the Canadian tradition means making “a more profound investigation” of the Canadian experience, the process should start further back than 1867 and address moments where popular engagement shaped the constitutional order. It’s not necessary to write a comprehensive history – the

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Supreme Court’s own review was understandably abbreviated – but it matters where the investigation starts and what it includes.5

Law in Early Canada The story of law in Canada begins with Indigenous peoples for whom law is grounded in a lifeworld of customary practices shaped by the land and its inhabitants, human and nonhuman. This embeddedness makes it a challenge to move between Indigenous modes of law and liberal constitutionalism.6 For this reason, the recognition of Indigenous law within the Canadian order remains a work in progress. Early European traders commonly respected Indigenous practice, and this mode of “mutual adaptation” provided “the foundation of a normative community that crossed the cultural divide” (Webber 1995, 626–7). At the outset, “it was the legal order of Canada that adapted to Indigenous ways, rather than the reverse,” (Girard et al. 2018, 145, 147) in part because there has always been a diversity of Indigenous groups on the land with preexisting norms of coexistence to manage plurality. Those practices in turn shaped relations with Europeans.7 The unbroken continuity of Indigenous tradition therefore helps account for the country’s “juristically pluralistic” structure (Borrows 2005, 174). For this reason, the pragmatic modifcation of law in the name of peaceful coexistence and based on the recognition of divergent normative orders is, arguably, among the country’s oldest legal practices. Crown sovereignty in Canada dates to a 1763 Royal Proclamation that has been compared to the Magna Carta for its signifcance in Canadian law (Slattery 2015, 26; Borrows 1994, 36). From the point of view of Canadian law, the Proclamation was a unilateral assertion of sovereignty over land and trade that redrew the map of North America to refect British victories and reserved vast territories for Indigenous populations.8 Indigenous law, however, locates the Proclamation within a pluralist tradition of inter-community treaties. Scholars point to the document’s formalization in the Treaty of Niagara, a historic gathering of Indigenous leadership memorialized in a two-row wampum. The wampum, a beaded belt created to record signifcant events and relationships, portrayed the Indigenous-European relationship as two ships travelling a river together. Each tends to their own vessel while sharing the river in peace and friendship (Borrows 1994, 11, 20–4).9 Canadian law recognizes that the 1763 Proclamation “codifed” a special relationship with Indigenous peoples, although courts generally treat Indigenous sovereignty as having been extinguished by the Proclamation.10 Anishinaabe legal theorist John Borrows disagrees, saying that Indigenous law may have been “concealed and submerged,” through such efforts, but it was not terminated. Borrows has harsh words for the idea that “raw assertion” or words “pulled out of the air” can nullify sovereignty, saying that the “court may as well speak of magic crystals being sprinkled on the land as justifcation” (Borrows 2002, xi, 96–8). Borrows’

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challenge highlights the dark side of performative magic, which can disenfranchise as well as empower. Canadian courts have gone so far as to admit that the Crown’s claim to sovereignty was “assumed” or established through “assertion,” and for this reason, still needs reconciling with Indigenous rights.11 This unreconciled quality is why both sides consider this special relationship in law as sui generis, meaning an order of law unlike any other that requires its own form of legal reasoning. Up to 1982, this body of law seemed set apart from conventional constitutionalism, but it has since been confrmed as fundamental (Webber 2015, 225–58). Indeed, because it involves the “honour of the Crown,” the Proclamation and the relationships it established “form a vital part of the Constitution of Canada” (Slattery 2015, 15, 32). Indigenous law is only one of the legal traditions underlying the Canadian constitutional order. A recent compendium on Canadian legal history cites three pillars to its evolution: Indigenous customary law, civil law from the French tradition, and common law from the British. Civil law was introduced to Canada through New France, briefy extinguished by the 1763 Proclamation and reinstated in the 1774 Quebec Act after authorities found they lacked the manpower to impose a foreign system on the Canadien population.12 With its accommodation of Catholicism and seigniorial practices, the Quebec Act was an extraordinary concession to reality that alarmed the southern colonies enough to make it into the list of grievances in the American Declaration.Thus the unwillingness of a population to accept a new legal order became a defning force in the birth of two new states. The American Revolution that resulted sent foods of loyalists into the Maritime provinces and Quebec, resulting in “a piece of constitution-making with far-reaching consequences.” One feature of the new constitutionalism was the introduction of “Anglo-Protestant hegemony” (Jasanoff 2011, 180).The new settlers were neither especially republican nor especially royalist, but shared “a common lack of ideological zeal” along with a general distaste for moral absolutism (Taylor 2007, 18, 31; Wallace and Bray 1999, 205). While the new population helped establish British common law in newly formed provinces, democratic government was a late development in Canada. By the time Confederation took place, only one generation had experienced a government accountable to its electorate, making popular democracy the least taken-for-granted element of that compact. In fact, efforts to suppress democratic uprisings in 1837–1838 led to one of the most telling episodes in Canadian legal history, because once again, the failure of legal order proved central to the evolution of Canadian constitutionalism. Sent by London to investigate the source of unrest, Lord Durham reported that the problem lay in large part with Canada’s ethnic composition, and he recommended immediate measures to assimilate French-speaking populations (Tully 1995, 159–62). An 1840 Act of Union then placed modern day Ontario and Quebec under a single parliament, rigged to ensure Anglo domination. What emerged

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instead was a system of inter-communal accommodation that preserved francophone autonomy and culture.That system lasted until Confederation in 1867 when the separate provinces were reestablished.The situation of Quebec within Canada therefore looks very different if the constitutional story is extended back before 1867, because it includes two major attempts to eliminate the institutions of French society. Federalism and minority rights evolved in Canada in large part because Canadians resisted those efforts, not unlike the way a special relationship emerged in law because Indigenous peoples refused sovereign proclamations.The principles that the Supreme Court identifed did not evolve from legal order, but from its refusal. By making certain laws unworkable, Canadians preserved the cultural, political, and legal diversity that became the hallmark of its constitutionalism.

Patriation and Beyond A focus on Confederation obscures the many layers of law laid down through the country’s development and downplays the extended “long goodbye” to imperial governance that attended its birth (Girard et al. 2018, 8).13 It also creates the impression that founding belongs to the past. But foundational questions, including the place of Quebec and Indigenous peoples, became increasingly contentious through the twentieth century and continue to resonate today. The chief contender for founding event outside of Confederation is the patriation of the Constitution in 1982, which granted Canada the power to amend its own constitution and added a new Charter of Rights and Freedoms, born out of efforts to address French-English language issues (McRoberts 1997, 258). But 1982 was, once again, primarily about managing ongoing interprovincial relations and not creating a new political order. The defning task of founding,Arendt explains, is not constitutional redesign but raw creation.The crucial question is not how to organize, exercise, or limit authority “but how to found a new one.” While performed as public spectacle, patriation did not involve the public in its realization.“The difference between a constitution that is the act of government and the constitution by which a people constitute a government,”Arendt says, is “obvious enough” (1963, 139, 137). To make matters worse, patriation went ahead over the objections of Quebec, which refused to sign the new constitution. And although more attention was paid to Indigenous peoples in 1982 than previously, it still fell short in many eyes. For these reasons, patriation left a “deep cleavage,” that in Peter Russell’s view, made it “more diffcult than ever” to complete the work of founding (2004, 126). Two attempts were subsequently made to renew the constitution frst with Quebec (the Meech Lake Accord of 1987) and then with Indigenous and public participation (the Charlottetown Accord of 1992). Both went down in defeat. The Meech Lake Accord, which Russell called “a classic exercise in elite accommodation, this time more secret than ever” (Russell 2004, 135) met demise

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when Oji-Cree legislator Elijah Harper held up proceedings in the Manitoba Legislature required to bring through last minute provincial endorsements of the deal. Indigenous peoples had been denied a seat at the table, or in the room, when Meech had been hammered out, and by the time the agreement reached Manitoba, Harper was left with little more than procedural rules to express dissent. Harper’s most decisive action involved a minor point of order on the grounds that notifcations had been improperly fled.The objection was pure technicality, but in introducing it, Harper cautioned it was “not a time for illegalities, for breaking rules,” adding:“It is a time for order, it is a time for due process” (Comeau 1993, 172). Correcting the error extended the debate on Meech beyond the deadline for its approval, putting a frm end to the affair. The demise of Meech was greeted “wholeheartedly and joyously” by Indigenous peoples who called it “a birth and rekindling” because it delivered a message about Indigenous issues in a way never heard before (Turpel and Monture 1990, 345–6). Refecting on the experience, years later, Harper explained that the problem with Meech was not its vision for Quebec reconciliation, but rather that so “little had changed” (Comeau 1993, 1). From the point of view of conventional politics, Harper’s actions were unthinkable. Indigenous peoples were assigned to silence under the prevailing constitutional order, yet Harper made exclusion speak powerfully enough to divert the course of Canadian history. That he was able to use the system’s silencing orderliness against itself should not be a surprise, for Arendt says that in the hands of a skilled storyteller, even “silence will speak” (1968, 97).14 By the time of its collapse, polls showed a majority of Canadians were happy to see Meech fail (Russell 2004, 152).A subsequent constitutional attempt followed in which elite accommodation was supplemented with broad national consultations that observers called “a cynical public relations campaign” that compounded the problem by doing “more of the same … in the vain hope of escaping it” (Noel 1994, 76, 88). The resulting Charlottetown Accord was a bit of a “dog’s breakfast,” promising “something for everyone” but “maybe not enough for anyone” (Russell 2004, 173, 187).That accord was defeated in a national referendum in October 1992, leaving the country bruised and exhausted by constitutional politics. The process that began with a lone voice in the Manitoba Legislature therefore ended with a mass exercise of popular dissent. Refusal and resistance may be defning themes in Canadian history, but this was the frst time popular voice had penetrated the insular world of Canadian high politics in a decisive way. The exercise came at the risk of Quebec’s exit from Canada, which very nearly became a reality. The ongoing alienation of Quebec and the failures of megaconstitutionalism speak volumes about the Canadian constitutional experience. “We Canadians,” David Cameron writes, “true children of the age of reason” believed that “every ‘problem’ has a ‘solution’” and so we “cried out for fnality, for an end to the crisis.” Instead our “earnest efforts to address the national question” were “paradoxically,

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part of what … kept the problem in existence” (Cameron 1998, 50–1). In the wake of the unthinkable defeat of frst one and then another major constitutional rewrite, the premium placed on problem-solving looks less certain. Peter Russell suggests the fnal Charlottetown defeat confrms that Canadians are now increasingly hard to scare with political catastrophes and unwilling to endorse principles dictated by the necessities of the Canadian constitutional legacy (2004, 223). These defeats, plus Quebec’s response, represent constituent moments because they changed what is considered possible in the constitutional order.

Law and Order in Canada An important feature of Canadian history is that, even without the beneft of democratic institutions, it has been diffcult to dictate conditions to the inhabitants. If the history of constitutionalism in Canada contains lessons on the relationship of law and popular sovereignty then, the role of law as the guarantor of order and continuity is not what it reveals. British law arrived in the continent as a disruptive force, reorganizing lands by fat. When French Canada was handed to Britain as a war prize, or when American loyalists fed revolution, each experienced their new legal system as a shock. Nonconsensual patriation delivered another shock for Quebec, and megaconstitionalist failures delivered shocks all round. What ultimately forged the principles identifed by the Supreme Court was the refusal or inversion of law and constitutional imperative, so it’s a mistake to characterize these principles as either orderly or contiguous in their origins. Had imperial powers or political elites with a constitutional vision succeeded in imposing their full authority on these populations, the country would look very different than it does today. The aim of this exercise, however, is not to reveal some supposed truths about Canadian legal history. A different review might well bring different issues to the fore.The aim is to probe the story of founding that the Supreme Court used to ground a doctrine on declarations of independence. Addressing the problem of secession required the Court to face the problem of political beginning, including Canada’s own. As Arendt explained, this problem is especially stark for moderns who use linear temporality, because within it, beginning appears as a troubling break.The solution Americans found was to worship their Declaration as a selfjustifed and self-contained event. In elevating 1867 to a founding moment, the Supreme Court is emulating this model. It did not consult the untidy history of Canadian law so much as project backward onto it a pattern of authority already associated with modern founding in other jurisdictions, because legal thinking in the Western tradition is shaped by a linear concept of time that locks constitutionalism into a particular relationship to beginning. Despite efforts to anchor Canadian constitutionalism in an authoritative beginning, it may be that the country’s constitutional saga makes a better story than it does a singular event.The story, as Peter Russell has pointed out, forms a kind of

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“Odyssey,” an unfnished one at that (2004). James Tully likens it to nastawgan, an Anishinaabe word for a network of routes through a forest that defnes a people, a pattern “too complex and ragged to ft any one theory” (1994, 151). Because it casts law as stability and continuity, the Supreme Court’s reasoning leaves little space for this generative disorder. But there are other ways of thinking about beginning that do not create the same tensions.While discontinuities confound the Supreme Court’s rationale, Indigenous law has resources for understanding and working with disorder. Before turning to this alternative model, it’s worth taking time to consider how the Supreme Court came to play the role of storyteller, a rather extraordinary function dictated by the Court’s task in delivering an advisory opinion.

Judicial Mischief In its retelling of constitutional history, the Supreme Court had to resort to imagination to summon up fgures who had, they insist, intended certain foundational principles to form part of Canada’s constitutional order. John Grant thinks Canadian constitutional politics is plagued by an obsession with “wholeness” that demands closing the gaps of Canadian history with the aim of “becoming one” as a county. Constituent power or the voice of popular democracy poses a threat to this project, because it threatens to enlarge the constitutional “conversation” beyond its traditional bounds.The tendency in constitutionalist and political theory writings on the Canadian founding therefore is to mute these kinds of disorders in favor of something more harmonious (Grant 2018, 93, 97). Barry Cooper suggests that part of the problem with politics in Canada has been an unhealthy obsession with stability and security. Canadians have been content to stay “sheltered within a stable political world” because they have been shaped by a mentality “formed in the strenuous conditions of exile.” He explains: “Canadians have been taught, particularly through the myths of the garrison and la survivance, that they associated initially (and also thereafter) solely for reasons of life and its necessities.”15 Cooper points out that “a garrison is a closely knit society” not because it has created something new or solved the problems of solidarity, but “because it is a beleaguered society” (1996, 95–108).When history becomes something to be engaged and eliminated in the name of stability, it produces a form of politics that remains “locked in sterile combat, with none able or willing to try a different way” (Cameron 1998, 50). Prioritizing stability and flling in the gaps of a constitutional order are not uncommon features of constitutionalism, although few courts go as far as the Canadian Supreme Court did in declaring they know what dead politicians were thinking. The Supreme Court framed the absence of articulated principles as a kind of oversight; something that happened because the consensus on these issues was so widespread. But there are other reasons for constitutional silence. Sometimes silences are intentional and refect a willingness to keep some questions in the political sphere. Sometimes they refect “imposed silences” designed

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to keep unwanted forms of politics out of the public domain. And sometimes, as Martin Loughlin has suggested, they express a tolerance if not outright appreciation for “ambiguity” as a resource in addressing confict. Constitutions, he says, “present themselves as devices of settlement but in reality are arrangements that thrive on evasion” (2018, 926–7). Loughlin uses the importance of constitutional silence to critique a particular mode of constitutionalism, one which the Canadian Secession Reference fndings came close to evoking. It’s the idea that all silence is to be eliminated. Instead, Loughlin advises, courts should be “reluctant to get involved in political matters.” When law is conceptualized as the voice of reason, rather than, say, the will of the people, there is no place for political action because reason flls all the space available. All questions would then be “answered in the language of law” without “gaps or silences.” He calls the mode of constitutionalism that emerges a “form of superlegality.” Because it’s rooted in apolitical rationality, it easily crosses national borders until “the world is flled with law.” He warns that a form of constitutionalism where silences are no longer tolerated will, at that point, have “taken a pathological turn” (2018, 929–31, 935). The urge to fll silence with easily globalized legal rationality suggests the Canadian Supreme Court displayed a touch of Loughlin’s pathology. But something slightly different may be going on, because the case was not traditional law, it was advice. The reference power enables the Canadian government to refer a question to the Court for guidance, and Canada is unique in the world in terms of the extent and signifcance of its use. The power is legally peculiar because it requires the Court to engage in abstract review and arrive at a fnding that isn’t a legal fnding in the normal sense, and that won’t form part of the body of precedent shaping the legal order.The reference power initially appeared at the federal level in the nineteenth century as a “tool to meddle with” the business of provincial governments by preempting or second-guessing their actions (Puddister 2019, 22). The provinces quickly adopted the same model and it’s been resourcefully used to address federal and interprovincial issues alike. The advisory opinion represents an “extrajudicial function” within Canadian constitutionalism. It has been challenged by politicians as an “illegitimate and problematic” judicial overreach, although only by those in opposition who couldn’t access these powers for their own ends. It has also been described in legal scholarship as threatening the independence of the judiciary by dragging them into political conficts, and one Supreme Court Justice even agreed, but theirs was a lone voice and the tradition continued. In the early 1900s, appeals were made beyond Canadian borders to the Judicial Council of the Privy Council in London in an effort to overturn the practice.Although the Council found that it created an opening for “mischief and inconvenience,” it did not rule against it.At each turn, the practice was defended on the grounds that it is effectively toothless (Puddister 2019, 28–9, 144).As nonbinding advice, no one has to take it seriously if they don’t want to.

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The advisory opinion is an unusual form of quasi-legal speech; outside the normal bounds of law but not inside the normal bounds of politics. It carries the authority of law without its force. And it enables courts to fll gaps in Canadian constitutionalism by using methods beyond law, which is how the Supreme Court became a storyteller. As Loughlin suggests, the cumulative effect of such backflling can be to displace politics with law. The capacity for mischief is perhaps the most consequential aspect of the reference power. Generally, this mischief is attributed to politicians who set up the Court to take the fall on a diffcult issue. But the Court is not beyond reproach. If it becomes captive to a particular idea of Canada, perhaps one focused on wholeness or stability, it can displace the constituent power arising in democracy by presuming to speak in its place.This, Grant suggests, is precisely what has happened with Indigenous peoples in Canada who can only appear in the Canadian constitutional frame as a kind of alter-ego to a unifed Canadian narrative. The only alternative for Indigenous peoples is to dwell at the margins as an unreconciled element of the national project (Grant 2018, 137).16 The Supreme Court created a constitutional narrative as part of its effort to articulate how Quebec might lawfully arrive at independence. Because that narrative makes Indigenous law a silent partner in the Canadian constitutional order, the Secession Reference opinion flls one silence by reproducing others.The only defense is that no one has to take it seriously.

Trickster Disorder As the Supreme Court’s deliberations illustrate, modern constitutionalism seeks its authority in a foundational event. Indigenous law, in contrast, seeks it in a story. Indigenous stories are unlike the Supreme Court’s storytelling in one important regard. They internalize the unruly elements of the legal setting. “Stories express the law in Aboriginal communities,” John Borrows explains, revealing “deeper principles of order and disorder” (2002, 13). At the heart of the most powerful stories is the fgure of the Trickster-creator.The Trickster is a complex fgure. Ever the bumbling troublemaker, he “creates through destruction, and succeeds through failure.” He epitomizes ambiguity, “thrives in a region of inbetweens,” and “personifes marginality.” Creation, when it takes place, emerges from his “botched magic” (Ellis 1993, 55–8).Tricksters are “masters of reversal,” providing a perpetual spoiler element that teaches “the impulse towards purity will end in another kind of loss if it not checked” (Hyde 1998, 118, 179). His power comes from the “ability to live interstitially, to confuse and escape the structures of society and the order of cultural things,” and he maintains “a magical affnity with chaos” (Babcock-Abrahams 1975, 148, 153). Because his antics create “an opportunity for realizing that an accepted pattern has no necessity,” the Trickster “refects the problem of the poet and the ruler” (Babcock-Abrahams 1975, 184, 186).

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Indigenous scholars describe Trickster stories as a kind of thought exercise or experiment in meaning. For Gerald Vizenor, the Trickster “cannot be separated or understood in isolation,” because it is “a sign in a language game.” Critically, that game has a comic quality and Trickster stories resist demands for “legitimation” (Vizenor 1993, 189, 195). Jokes require a sudden shift in perspective for the hearer to “get it,” and this perspective-shifting potential is what gives Trickster stories their legal weight.17 Borrows explains: “The Trickster encourages an awakening of understanding because listeners are compelled to confront and reconcile the notion that their ideas may be partial and their viewpoints limited” (2002, 56). Borrows uses Trickster storytelling to illustrate the treatment of Indigenous peoples under Canadian law. Because it “allows alternative constitutional interpretations and reveals the cultural construction and contingency of law,” the Trickster story interrupts a tendency to create the overly neat accounts of law that Borrows associates with efforts to submerge Indigenous tradition (2002, 57). Jurist Jean Leclair concurs, saying without a recognition of tricksterism, Canadian law “is just too smooth” (2016, 15). Trickster stories remind their audience about parts of themselves they try to exclude in creating social order, which is why they contain so much rule breaking, chaos, and scatological themes. Lewis Hyde calls the excluded element “dirt” and explains that the “dirt-work” in tricksterism threatens to expose an “order to its own exclusions.” For this reason, “a fght about dirt is always a fght about how we have shaped our world” (1998, 196–8). Disorder and ambiguity are “dirt” in the face of a legal system’s aspirations to order and clarity. The problem with setting up clarity as an ideal for political founding in Canada is that the methods the Court used to reach its own decision were not entirely transparent.The Court’s selective history cleans up the story of law until what results is “much too smooth.” As with Loughlin’s careful consideration of constitutionalism, the Trickster’s foolish antics call for mindfulness around ambiguity and contingency, rather than their elimination.That mindfulness serves as a reminder that the possibilities for disorder, inversion, and injustice always surround a legal structure. That’s something to be remembered and guarded against, but the hope that it can be eliminated entirely leads down the pathological path Loughlin identifed. Trickster stories amount to a formula for humility in law that counteracts claims about absolute sovereignty and totalizing rationality. Whereas clarity sets an unattainable standard that threatens to render law barren as regards beginning, because it internalizes the chaotically new, the Trickster story equips its audience to encounter change productively.

Conclusion The “solomonic” quality of the Supreme Court’s secession opinion was cited as a reason for its success.The Judgment of Solomon is the story of a child claimed by two women.When King Solomon announces he will cut the child in half to

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give each woman a part, one responds by revoking her claim, and the real mother is revealed. One message of Solomon’s judgment is to be careful when you call on law to resolve a dispute. If questions of popular sovereignty and independence need to be settled in court, it may prove unsatisfactory all round. Solomon resolved his parental dilemma by outfoxing the false mother, and his judgment turns out to be a trick that uncovers the truth. The Supreme Court’s judgment was genius in many ways, pouring oil on troubled waters and offering something for everyone. But it was tricky, both in its history and in its prescriptions, and that may be the most important thing about it. Canadian constitutionalism is not a simple story of order and continuity. Centuries of intransigence were required to forge the “strange multiplicity” that appears today (Tully 1995).What Juno says about the exiled Trojans of the Aeneid could well be said of generations of Canadians; they refused to “stay defeated in defeat,” and because of that,“they’ve found a way” (Virgil 2006, 223). Canada has no declaration of independence to mark a single entry point for this project, and 1867 should not be shoehorned into that void. It does contain a story of beginning though, perhaps multiple stories, and for the purposes of foundation, that can be equally potent. The Supreme Court added its own story to the mix. Indeed for one commentator, the entire question of secession comes down to “a clash of stories” (Gaudreault-DesBiens 1999, 796).The creativity of the Court’s intervention did not go unnoticed. Observers declared that the Court “broke new ground” when it divined foundational principles from the constitutional unknown. Some complained it had “fabricated” or invented the duty to negotiate (Johnson 2019, 1078; Gaudreault-DesBiens 1999, 828) while others praised the Court’s “astute political craft” (Penney 2005, 243). By all accounts, something unusual took place. In a certain light, the Supreme Court’s pronouncements on constitutional origins are no more or less mythical than those in the American Declaration.The exercise produced a high-status, proto-legal document that serves as a lodestar for constitutional practice while offcially remaining marginal to it. It also works by projecting authority backward in time and then sourcing its justifcation in that exercise. The judgment was not founding speech, but it was speech about a founding that falls adjacent to, but not fully within, the body of conventional law. It’s also an authoritative source of principle, an “intensifer” of constitutional argument, and a source of “creedal guidance” in a manner reminiscent of the American Declaration (Graber 2016, 522; Michelman 2016, 575). Ironically then, the Supreme Court advisory opinion on Quebec secession may be the closest Canada has come to delivering something like a declaration of independence. And while it lacks the kind of clear-cut popular endorsement the Court mandated for other founding speech, the judgment owes a great deal to popular opinion because there was very little appetite for keeping Quebec in the country by force (Penney 2005). Rather than silencing constituent power outright, the Court opted to set conditions on its expression, creating what some

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consider “a powerful tool against populism” (Martinico 2019, 251). The idea of unfettered popular voice may look like “dirt” against law’s orderliness, but it’s a mistake to think one can tame the other. Some form of extraordinary democratic presence must remain possible if we are to avoid the spiral of “infnite regress” on legitimacy issues associated with modern “authored” constitutionalism (ColónRíos 2010; Michelman 1999, 1617).18 This is never more true than in the case of the “law-less character of the constituent debate.” In expanding the reach of Canadian constitutionalism to cover the birth of a new political order, the Court “purported to act as the oracle of already binding law on a subject for which no such law exists” (Kay 2003).As law, it’s a suspect overreach, even if it was just what the country needed. Still the Supreme Court was right in one important regard. Speech is not magic; it cannot generate legitimacy from thin air and conditions on the ground matter.That applies to declarations of independence as much as to conventional expressions of law. But when it suggests that speech can be orderly and clear, the Court has gone too far.As with Austin excluding jokes from performative speech, the Court’s theory comes at the expense of some critical exclusions. The myth of law as order is a generally benefcial one, but it is least useful at the moments when declarations appear, because that’s when the legal order itself is in dispute (Kay 2003, 334). The Court leaned heavily on the idea that the international order would exert an external disciplinary force on Quebec’s behavior, but that consideration is not a legal one, it is an attempt to identify nonlegal reasons for compliance.The very effort is an admission of some kind. In the end, the Supreme Court didn’t decipher how a declaration of independence works. It simply specifed the terms on which Canadian law could accommodate one. Because it mandated clarity from one side and negotiation from the other, the Court’s formula looks generous and evenhanded. But what it gives with one hand it takes away with the other. Since many of the critical questions in an independence process would be subject to negotiation, a clear and informed opinion is simply not possible before the fact (Castaldi 2019, 241). Setting clarity as a condition for the birth of legal order therefore sets up a Quixotic quest.There is also no assurance that negotiations will reach agreement, or that in the absence of agreement, independence movements will patiently await resolution. It’s not even clear how to negotiate with part of a country that’s half-in and half-out of the union (Cairns 1998). Because it keeps the timeline from breaking completely, legal continuity may have much to offer moderns easily unsettled by the prospect of change. By binding a chaotic world together, it may even play a role akin to storytelling for ancient peoples. Still, law that remembers its own relationship to disorder will serve this end best. For this reason, if Canada is truly in need of a founding fgure it could do worse than Elijah Harper. Harper is the great spoiler in Canadian constitutionalism. A mild-spoken and generous man who entered history as a professional interrupter of high-stakes affairs and a troublemaker who makes silence speak. Equipped with

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nothing more than refusal, he used the Orders of the House, and the hallowed procedures of federalism and democracy, to make disorder reign. Harper was no Trickster; he was a real person. But his entirely lawful actions stood in the way of a neat narrative of Canadian history and constitutional necessity. That narrative said it wasn’t time for his voice to be heard. Ending that narrative required him to stand alone in the path of history. That appearance marks, as Arendt would recognize, a beginning.

Notes 1 The Canadian fnding has taken on “canonical status” in international jurisprudence and was cited by the International Court of Justice in its deliberations on the Kosovo Declaration of Independence (Oklopcic 2011, 375). 2 Quebec’s position was argued by a court-appointed amicus curiae (Ryder 1998). 3 The history of early law in Canada also includes the practice of proto-legal powers by the Hudson’s Bay Company. Known as “Club law,” the company regulated the trade, labor, and living conditions of its employees, often in autocratic ways (Loo 1994). 4 As constitutionalists Hail and Lange explain: Since the Fathers of Confederation frequently do not directly quote or give acknowledgement to the philosophical basis of their ideas, it is necessary to be familiar with the tradition of Western political philosophy as well as with the debates, speeches, and writings of the Fathers to recognize the reliance of the latter upon the former. (2010, 385) 5 Notably, a recent compendium of Canadian legal history begins with Indigenous law, not Confederation (Girard et al. 2018). 6 Jeremy Webber explains that the “reasoned quality of customary law” resides not just in authoritative texts but in a “grammar” that informs how individuals navigate an issue (2009, 587, 620).Val Napoleon explains that Indigenous law “is not a thing,” it’s a process that “people actually engage in,” something that it is “recorded inside peoples’ relationships” although it requires the same critical engagement as all law (2013, 232, 241). 7 For example, the Great Peace of Montreal, reached in 1701, represented “a grand constitutional settlement” that formalized norms of mutual respect and peaceful coexistence among French and Indigenous communities (Girard et al. 2018, 20–1). 8 The Proclamation also shaped law in the Eastern territories where it served to legitimate the expropriation of Indigenous lands (Beaulieu 2013, 4, 21). 9 The two-row wampum appeared in inter-communal agreements as early as 1613, so its appearance at the Niagara agreement refects an ongoing norm. 10 This sometimes surfaces as conficts in law. For instance, what the Canadian state sees as smuggling, Mohawks see as exercising traditional mobility rights. Audra Simpson calls the disagreement a problem of “failed consent” created when Mohawks refuse to recognize territorial boundaries originating outside their tradition. She suggests that the problem reveals the “fragility” of sovereignty which frames such refusal as “lawlessness” (2014, 115, 128, 144). 11 Notably, de facto power was explicitly rejected by the Supreme Court as a source for lawful authority in the case of Quebec independence. In contrast, Jeremy Webber suggests that the “frst source of order” in early settler-Indigenous relations “was the normalization of fact.” This improvised order served a “foundational role” because it was originally “all the parties had in common.” He calls it “a neglected aspect of our normative history” (1995, 656, 658).

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12 The exclusion of Catholics from civil positions meant that 70,000 Canadiens needed to be administered by as few as 300 English-speaking Protestants, often uneducated traders and merchants. It didn’t help that British military forces garrisoned in the province showed little respect for the makeshift administration either (Pollock 2000). 13 In terms of international status, Canadian independence technically arrived in 1931, although the event has no meaning for the general public. 14 Harper was in fact a storyteller and used stories as normative argument. He once told of a house occupied by quarrelsome squatters that evicted the original inhabitants, who remain dumbfounded by the behavior of their one-time guests. Harper explained the story remains unfnished (Comeau 1993, 138–9). 15 La survivance refers to the survival of French language and culture in the face of conquest and imperial efforts at assimilation. 16 Although Grant frames this dynamic as dialectical, Elke Winter uses a Weberian analysis to suggest that Canadian identity emerges from a dynamic she terms “us, them, and others.” The dynamic includes Quebec and occasionally the United States. Winter’s thesis also argues against the tidy narrative of constitutional history delivered by the Supreme Court (2011). 17 Leanne Simpson argues the relationship of Trickster stories and intellectual awakening is related to cycles of worldly recreation, although she takes issue with the term “trickster” and says the proper term is closer to an “elder brother” that assumes the role of “buffoon” as a means of instruction (2011, 73) 18 Frank Michelman explains the problem of constitutional authorship thus:“If someone told you to write a book whose every chapter begins with the terminal sentence of an immediately preceding chapter, your problem wouldn’t be an inability to complete the task, but rather an inability to begin it.”Although directed at deliberative constitutionalism, this problem applies to all systems that rely on foundational law to authorize their project (Michelman 1997, 151, 165).

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McRoberts, Kenneth. 1997. Misconcieving Canada:The Struggle for National Unity. Toronto: Oxford University Press. Michelman, Frank I. 1997. “How Can the People Ever Make Laws? A Critique of Deliberative Democracy.” In Deliberative Democracy: Essays on Reason and Politics, edited by James Bohman and William Rehg, 145–171. Cambridge, MA: MIT Press. ———. 1999.“Constitutional Authorship by the People.” Notre Dame Law Review 74 (5): 1605–1629. ———. 2016.“The Ghost of the Declaration Present:The Legal Force of the Declaration of Independence Regarding Acts of Congress.” Southern California Law Review 89 (3): 575–600. Napoleon,Val. 2013. “Thinking about Indigenous Legal Orders.” In Dialogues on Human Rights and Legal Pluralism, edited by René Provost and Colleen Sheppard, 229–245. New York: Springer. Noel,Alain. 1994.“Deliberating a Constitution:The Meaning of the Canadian Referendum of 1992.” In Constitutional Predicament: Canada after the Referendum of 1992, edited by Curtis Cook, 64–80. Montreal: McGill-Queen’s University Press. Oklopcic, Zoran. 2011.“The Migrating Spirit of the Secession Reference in Southeastern Europe.” Canadian Journal of Law and Jurisprudence 24 (2): 347–376. https://doi.org/10 .1017/S0841820900005208. Palermo, Francesco. 2019.“Towards a Comparative Constitutional Law of Secession?” In The Canadian Contribution to a Comparative Law of Secession, edited by Giacomo Delledonne and Giuseppe Martinico, 265–282. Cham: Springer International Publishing. https:// doi.org/10.1007/978-3-030-03469-6_13. Penney, Jonathon W. 2005. “Deciding in the Heat of the Constitutional Moment: Constitutional Meaning and Change in the Quebec Secession Reference.” Dalhousie Law Journal 28 (1): 217–260. Pollock, Carolee. 2000. “Thomas Walker’s Ear: Political Legitimacy in Post-Conquest Quebec.” Lumen: Selected Proceedings from the Canadian Society for Eighteenth-Century Studies 19: 203–214. https://doi.org/10.7202/1012325ar. Puddister, Kate. 2019. Seeking the Court’s Advice:The Politics of the Canadian Reference Power. Toronto: UBC Press. Qvortrup, Matt. 2015. “Voting on Independence and National Issues: A Historical and Comparative Study of Referendums on Self-Determination and Secession.” Revue Française de Civilisation Britannique 20 (2). https://doi.org/10.4000/rfcb.366. Reference re Secession of Quebec. 1998. 2 SCI Rev 217. SCC. Russell, Peter H. 2004. Constitutional Odyssey.Toronto: University of Toronto Press. Ryder, Bruce. 1998.“A Court in Need and a Friend Indeed:An Analysis of the Argument of the Amicus Curiae in the Quebec Secession Reference.” Constitutional Forum 10 (1): 9–13. https://doi.org/10.21991/C95Q2H. Simpson, Audra. 2014. Mohawk Interruptus: Political Life across the Border of Settler States. Durham, NC: Duke University Press. Simpson, Leanne. 2011. Dancing on Our Turtle’s Back: Stories of Nishnaabeg Re-Creation, Resurgence and New Emergence.Winnipeg:Arbeiter Ring Publishing. Slattery, Brian. 2015.“The Royal Proclamation of 1763 and the Aboriginal Constitution.” In Keeping Promises: The Royal Proclamation of 1763, Aboriginal Rights, and Treaties in Canada, edited by Terry Fenge and Jim Aldridge, 14–32. Montreal: McGill-Queen’s University Press.

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Taylor, Alan. 2007. “The Late Loyalists: Northern Refections of the Early American Republic.” Journal of the Early Republic 27 (1): 1–34. https://doi.org/10.1353/jer.2007 .0016. Tully, James. 1994.“Diversity’s Gambit Declined.” In Constitutional Predicament: Canada after the Referendum of 1992, edited by Curtis Cook, 149–198. Montreal: McGill-Queen’s University Press. ———. 1995. Strange Multiplicity: Constitutionalism in an Age of Diversity. Cambridge: Cambridge University Press. https://doi.org/10.1017/CBO9781139170888. Turpel, M.E. and P.A. Monture. 1990. “Ode to Elijah: Refections of Two First Nations Women on the Rekindling of Spirit at the Wake of the Meech Lake Accord.” Queen’s Law Journal 15 (2): 345–359. Vaughan, Frederick. 2003. Canadian Federalist Experiment: From Defant Monarchy to Reluctant Republic. Montreal: McGill-Queen’s University Press. Vidmar, Jure. 2011. “The Kosovo Advisory Opinion Scrutinized.” Leiden Journal of International Law 24 (2): 355–383. https://doi.org/10.1017/S0922156511000057. Vipond, Robert. 1989. “1787 and 1867: The Federal Principle and Canadian Confederation Reconsidered.” Canadian Journal of Political Science 22 (1): 3–25. Virgil. 2006. The Aeneid.Translated by Robert Fagles. New York: Penguin Books. Vizenor, Gerald. 1993. “Trickster Discourse: Comic Holotropes and Language Games.” In Narrative Chance: Postmodern Discourse on Native American Indian Literatures, 187–211. Norman, OK: University of Oklahoma Press. Brown, Wallace. 1999. “Victorious in Defeat: The American Loyalists in Canada.” In Reappraisals in Canadian History: Pre-Confederation, edited by C.M. Wallace and R.M. Bray, 197–205. Scarborough, ON: Prentice Hall Canada. Webber, Jeremy. 1995. “Relations of Force and Relations of Justice: The Emergence of Normative Community between Colonists and Aboriginal Peoples.” Osgoode Hall Law Journal 33 (4): 623–660. ———. 2009.“The Grammar of Customary Law.” McGill Law Journal 54 (4): 579–626. ———. 2015. The Constitution of Canada:A Contextual Analysis. Oxford: Hart Publishing. Winter, Elke. 2011. Us,Them and Others: Pluralism and National Identities in Diverse Societies. Toronto: University of Toronto Press.

6 SCOTLAND’S FESTIVAL OF DEMOCRACY

The Canadian Supreme Court struggled to navigate the relationship between constituent power and constitutional principle and ultimately laid a roadmap for lawful founding. Quebec never tested that formula, but following years of debate and activism on the subject, the Scottish government under the Scottish National Party (SNP) put detailed thought into how the process might work in a Scottish context. Scotland’s Future, the major policy document outlining the case for, and procedures for, independence contains only the barest suggestion that a declaration would be necessary and, even then, only under authorization by Westminster.1 In other words, the offcial Scottish view was that whatever founding speech might be required should take place as variants on existing legal, procedural, or constitutional practices. Any announcement that might appear under this approach would be a fundamentally different creature than the American original, because in the Scottish case, questions surrounding authorization, authorship, or authority should not appear. By folding the moment of independence into constitutional practice, the Scottish model changes the relationship between law and constituent power. Scotland adopted this approach intentionally, and the entire question of independence was approached in a careful and deliberate way.When it came to legitimating the energies of founding, the emphasis was on a popular referendum followed by a process of separation that adhered as much as possible to familiar conventions of law and politics. As such, the Scottish independence agenda was largely defned by a reluctance to tangle with the ambiguous and unruly energies of beginning. The approach has been praised for charting a path to independence through gradualist, legally sanctioned, and popularly endorsed methods (Levites 2015). If there is a reliable procedure for founding that falls within conventional structures of law and politics, then the problem of fnding a language for extraordinary

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beginning is rendered moot. Celebration on this point seems premature, however, since Scotland has not arrived at independence, and it remains unclear how it might play out in actuality.All that can be said at this point is that the process has been approached in a responsible manner. Considering that there is a great deal to be said for the Scottish approach thus far, it might seem out of place to ask why a declaration of independence hasn’t played a major role in the planning.To put it bluntly, does it even matter if this dog prefers not to bark? There are at least three reasons that the question deserves attention. First, the Scottish government has been careful to follow convention, domestically and internationally.A declaration of independence is the global norm, so what is being avoided by sidelining founding speech in this case? Second, by making clarity, continuity, and the expression of popular preference through referendums the focus of its activities, the Scottish approach serves as a test case on the Canadian formula for lawful independence.The Scottish experience may therefore indicate something about how well these measures operate in reality. Third, the Scottish anomaly may indicate something about the trajectory for founding speech more broadly. Perhaps declaratory founding has become a dated instrument and the Scottish approach represents a new way to navigate the disruptive and disorienting aspects of beginning. If so, the Scottish situation can still shed light on declaratory foundings, by showing how they might be done otherwise. The chapter takes the 2014 independence referendum or “indyref ” as a central event in the Scottish story. The event was expected to deliver the popular voice in such unambiguous terms that it put closure to the independence question for a generation or more.2 Had Scotland been inclined to issue anything resembling a declaration of independence, a positive result would have delivered the legitimacy required if not the formal legal authorization.While closer than originally expected, the fnal result was a defeat, making this a failed founding. But as previously noted, failed or incomplete foundings may be especially rewarding to explore because they showcase the energies of political beginning without the distorting effects of retrospective closure. Indeed, the entire Scottish process is unprecedented. With the possible exception of the constitutional debates surrounding Quebec secession, rarely has the path to independence been so thoroughly researched by a government or imaginatively test-driven by a population. Although it was designed to deliver clarity, the Scottish verdict was messy and its long-term implications are still uncertain. The Scottish case therefore involves a credible effort at summoning the authority to declare independence without actually arriving there, and without putting closure to the question in the manner anticipated. The discussion starts by considering the question of sovereignty in Scottish history, including the Declaration of Arbroath and the related “claim of right” that is rearticulated at points in the twentieth century. Neither easily accounts for the current approach to contemporary independence.The discussion then considers the offcial stance on independence, which placed a premium on the interrelated

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values of continuity and global engagement. Global relationships incentivized Scotland to minimize potential disruptions and favored a legal or constitutional process over a declaratory one.The independence effort also required “clarity” in a referendum process. But the clarity agenda celebrated in global constitutionalism is not easily delivered in practice.While the “festival of democracy” that emerged around the referendum did not deliver an endorsement for independence, it may have generated important political energies nonetheless. Understanding the place of those energies within the Scottish experience, including how they relate to aspirations around clarity and independence, indicates dynamics in the founding experience that apply well beyond the Scottish setting.

The Scottish Claim of Right One answer to the declaration anomaly in the Scottish case is that Scotland doesn’t need one, having maintained its sovereignty since the Middle Ages in what is termed the Scottish “claim of right.” The 1320 Declaration of Arbroath is frequently cited as beginning a chain of related sovereignty claims that weave through Scottish history creating a continuity of language and principle that is impressive in its staying power. Popular movements in the twentieth century reiterated the claim, insisting that Scotland never surrendered its sovereignty in joining the UK, and that it can be reactivated at Scottish discretion.3 If Scotland were an extraordinarily early adopter of declaratory founding then it would be understandable why the Scottish government wouldn’t prepare another one. The Declaration of Arbroath has been described as an inspiration for the American Declaration and a 2008 US Presidential Proclamation announced a national day of celebration for the document on the grounds it was the “Scottish Declaration of Independence.” However, historians consider any connection between the two documents to be little more than tourism-fueled myth. It’s unlikely that any of the American founders knew of the Scottish document’s existence, which had “little impact” outside the country (Harrison 2017, 436–7, 450). Indeed, the document effectively disappeared from Scottish life for several hundred years before reappearing in the wake of the Glorious Revolution. The Scottish and American documents both seek to validate leadership in the midst of civil confict, based on an appeal to the rights and interests of a national population. But the similarities stop there.The Scottish document did not declare independence or establish a new regime so much as affrm allegiances in the midst of a particularly bloody period of politics where the chief aim was to keep the English Crown at bay. Although it has been read as an early statement of popular sovereignty (MacCormick 2000) and contains rousing language about freedom,4 claims that the document refects popular voice must be tempered by historical reality. Communal practices may have distinguished Scottish kingship, but there is little evidence that the Declaration was widely known among the Scottish

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population of the time and possibly not even among some signatories, whose seals were affxed later. Studies also fnd there was also “relatively little mention” of the document in political or academic discourse before 1940, suggesting its infuence increased alongside the modern Scottish nationalist movement as part of a concerted effort to cultivate “myths of global importance” through an association with popular sovereignty (Harrison 2017, 437, 439).5 Even naming the document a declaration is a recent invention, acquired in the late twentieth century (Harrison 2017, 440). In reality, it is a letter, one of three addressed to the Pope, pleading the case for leaving in place the current occupant of the Scottish throne, Robert the Bruce. In an effort to defend Robert’s position, the document argues that the right to rule is tied to a leader’s de facto ability to defend Scottish rights and interests.This claim survived as the “claim of right” and reappeared in documents and manifestos from the seventeenth century to the present.As a focus for mobilization, the claim acquired an increasingly populist dimension, leading the Arbroath document to be reimagined accordingly. The claim of right involves something like the inverse of what a declaration of independence delivers. Instead of introducing independence as something new, Scottish political authority is positioned as ancient, persistent, and authoritative. There is no raw beginning to be reckoned with under this account because the diffcult questions of origins lie in the distant past.This puts Scotland in an enviable position. Effectively it has a choice whether to frame its founding as an ancient or a modern one. Arendt believed ancient roots provided camoufage for the work of beginning, which is why Americans turned to Roman traditions for their own founding. But grounding Scottish sovereignty in ancient tradition poses two problems. First, fairly or unfairly, it raises concerns around regressive, ethnicity-driven nationalism. Second, it minimizes an important Scottish achievement: the union. Scotland has been, for much of its history, a partner within the union of kingdoms that is the British project.The suggestion that Scotland has to some degree been resisting English rule for over 600 years is a diffcult argument to make on practical grounds. Perhaps more importantly, doing so silences many Scots for whom the union is a meaningful institution. The SNP generally avoided these ancient associations, rarely making any reference to the Arbroath Declaration (Harrison 2017, 444).6 Given this pattern, it’s unlikely that the document accounts for the absence of a declaration in Scottish planning.While the historical documents of Scottish sovereignty have been significantly reimagined, this in itself is not a disqualifying feature for founding speech, where meaning is malleable and reception is critical.The Declaration of Arbroath could be repurposed as founding speech if there was a will to do so.What put it outside of the independence process was an offcial strategy designed to ground authority in Scotland’s future, not its past.Whatever its potential as a reimagined symbol of sovereignty, the Declaration of Arbroath was not the chosen vehicle for political beginning in contemporary Scotland.

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Continuity and the Global Setting The language adopted in the government’s main independence playbook makes clear a shift in emphasis. The Scottish strategy aimed at signaling continuity at every turn, ensuring a “seamless transition” from British region to European state. Extensive effort was put into framing post-independence relationships as “orderly and secure” and into assuring Scots that transition would be “transparent, predictable, well-ordered and low-risk” (Scotland 2013, 220, 238, 349). There are occasional moments when a sense of bold aspiration breaks through, suggesting that with independence, “the eyes of the world will be on Scotland” or that a new constitution will capture the “aspirations” of Scots and their “vision for the future.” But these statements are offset by efforts to diminish the magnitude of the decision. Independence is described as “increasingly the natural state of affairs” for national groups worldwide, making Scotland “no different” than any other state (Scotland 2013, 207, 351, 550). If a reader wasn’t already struck by the claims around continuity appearing on every other page,7 Scotland’s Future reinforces its message with assurances about what wouldn’t change under independence.The list of services, institutions, and policies that it promised will experience minimal disruption includes: pensions, benefts, and tax credits; civil service jobs; oil and gas rights; the National Health Service; organ and blood donation; Olympic and Paralympic participation; university research and funding; the Royal Mint; lifeboat services; passports (until renewal); mobility (within the UK and Ireland);Air and Maritime Accident investigation; Royal honors; fags (the union fag, the lion rampart can still be fown); and, last but certainly not least, the Queen. There would also supposedly be a shared currency area (Sterling) and a “social union” based on personal and cultural connections (2013, 29). Scotland’s Future also identifes a number of key global relationships where it envisions that Scotland would continue as an independent member.These include: the United Nations; the World Trade Organization; the International Monetary Fund; the World Bank Group; the Commonwealth; the Organization for Security and Co-operation in Europe; the Organization for Economic Co-operation and Development; the Council of Europe; the North Atlantic Treaty Organization (as a denuclearized member); and the European Union. The Scottish policy paper devotes considerable time to explaining why continuing membership in the last two groups in particular are in the interests of all parties.While there is recognition that the question of post-independence membership was unprecedented for the EU, the document maintains any issues can be resolved by a “consensual and lawful” process (Scotland 2013, 221, 250). When it comes to factors that ensure a seamless transition under the offcial strategy, frst and foremost is law. According to Scotland’s Future, in the event of a positive referendum vote, the Scottish Parliament would “seek a transfer of necessary powers” from Westminster that would “give to the Scottish Parliament

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powers to declare independent statehood” and “assure competence” to write a new constitution (Scotland 2013, 21, 52–3). While this seems to indicate that Scotland will declare something after all, this declaration will not resemble other founding documents, because the Scottish formulation is designed to ensure the fedgling state never leaves the sphere of established law and therefore never comes up against the problems of constituent power. Everything is acquired by grant of authority from a higher level or is derived from “[e]xisting constitutional arrangements” (Scotland 2013, 221, 338, 340). This goes further than the Canadian independence formula envisioned. In that case, legitimate independence preferences mandate a renegotiation of the political order and only this negotiation can determine what comes next. Negotiations will go well or poorly, depending on how the parties engage the process. Indeed, the rejection of unilateralism was the central thrust of the Canadian court’s argument. Under that model, there is simply no way to guarantee any particular outcome because negotiation is politics not law. Scottish planning collapses the moment of openness that the Canadian formula requires by promising that the uncertainty of beginning can be avoided with enough fdelity to law.Yet there are unprecedented elements in any founding. In the Scottish case, these include frst-time questions around the status of membership in the EU as well as its partnership with the rest of the UK, meaning the position of the international community cannot be taken for granted.While a Scottish vote for independence can trigger such negotiations, their outcome cannot be predetermined. When Scottish independence is viewed not as an isolated event in British politics but a moment in European or global politics, tensions between law as continuity and popular voice as constituent power are heightened. Scotland forms a test case where “an earnest but frustrated legalism which can never substantiate its own claim to authoritative resolution” faces off against “measured” or perhaps “cynical” forms of “political opportunism” that aspire to new orders of authority (Walker 2017, 36). Any Scottish independence project must therefore thread a very fne needle.A popular mandate in Scotland could set off ripple effects across Europe, so the Scottish government must generate a mandate for independence without making it the basis for subsequent actions. Skeptics align populist independence with a dangerously messianic form of politics (Weiler 2017, 15). The problem, as one constitutionalist explains, is that secession movements are experienced as a blow to a certain kind of politics. They represent “a failure of the rationalist project of sharing a polity out of rational choice” (Closa 2017, 3). By ensuring the process honors the legal rationalism that it otherwise imperils, the Scottish strategy served to de-escalate tensions between law and populism.Viewed as a case of populist forbearance as much as constitutional fdelity, the Scottish case takes on a different cast. The constitutionalist rationalism imperiled by Scottish independence is perhaps best exemplifed in the EU. Indeed, given the inherently conservative leaning of European constitutionalism, some conclude that no declaration of independence

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could take place in a European territory that went against the wishes of a parentstate (Closa 2017, 4).8 While some advocate for the EU to take an active role in such events, Neil Walker suggests that by “simply existing,” the EU already “changes the balance of political incentives” for independence efforts. In terms of action, the EU favors constitutional deference and rewards actors that play by the rules. But it also provides a “protective presence” for “forms of autonomy short of independence” (Walker 2017, 32, 46). Ultimately, as Walker explains, the “concern has always been with the minimum necessary disturbance of the existing international distribution of sovereign authority, rather than the fairest and fullest accommodation of self-determination claims” (2017, 38). The Scottish independence agenda is held up as a global model that is coherent with law and constitutionalism (Levites 2015, 377; Bell 2016, 198). If lawabiding secession is the only acceptable model for disruption-averse European constitutionalists, then unilateralism reappears in the form of the parent-state veto, with it all the risks that implies. In fact, under Walker’s analysis, it’s not the parentstate objection that’s doing all the work. The effect is at least in part a result of solidarity among member states aimed at resisting disruption.9 Scottish planning accommodated itself to this reality. But the position in the Canadian Secession Reference was not that constitutionalism rules all. It was that with unilateralism ruled out by law, a clearly expressed democratic desire for independence must be engaged through political measures. Otherwise the constitution would be in danger of becoming a prison for popular voice. Constitutions serve to stabilize political order and provide the kind of authority that Arendt believed could be endlessly renewed, but only if they retain a certain openness (1963, 193–5). The commitment to constitutionalism keeps Scotland from vesting its independence claim in democratic or popular authority as something that operates beyond or prior to existing law.The price of that orderliness is that popular voice is allowed only brief expression in a referendum and then silenced or set aside until critical negotiations and authorizations are complete.This helps explain why a Scottish declaration of independence gets so little attention.The declaration has not disappeared from the Scottish scene; it has become an ordinary piece of legislation.10 Offcial Scottish materials represent a scenario where independence is not only “thinkable,” it has been absorbed into conventional practice. By ruling out the peculiar authority that earlier declarations invoked, the new system promises to minimize uncertainty and confict. The problem is that “law cannot strip democratic politics of its inherent uncertainty and instability” (Tickell 2016, 345).11 From an Arendtian point of view, while some continuity is necessary to keep politics livable, shielding people from the arbitrariness of the new also insulates them from the context in which they encounter full freedom.The Scottish case suggests that such insulation is not only possible, it’s desirable.While the Scottish approach cannot eliminate newness and uncertainty from politics, it does make declaratory founding less likely to be its primary form of expression.

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The Clarity Agenda If political founding is about cultivating the new, yet Scottish government planning forestalls the experience of beginning, then something else is needed to provide the required authority.A referendum on independence addresses this gap. A referendum has the advantage of being of-the-moment and democratic. It also has the invaluable property of forcing popular preference into a narrow and manageable format. Referendums have become the default method of “formalizing” a preference for independence with the added beneft of securing global recognition, leading them to be held in some cases even though the outcome was a foregone conclusion (Vidmar 2013, 266).Yet there is a robust body of opinion on Scottish affairs that believes the 2014 referendum produced neither clarity nor closure on the Scottish independence question (Cairney 2015, 186; Hassan 2017, 380; McGarvey 2015, 39; Devine 2017, 246).12 Before acclaiming it a “precedent to which subsequent secessionists must adhere” (Levites 2015, 377) it would be well to determine how the clarity agenda went so wrong in this case.Two factors seem especially relevant.The frst has to do with the peculiarities of the Scottish situation, where a population seems genuinely poised between different and often conficting commitments in an ever-evolving situation, without much will to abandon either one. The second has to do with the expectations around what clarity can deliver in an independence setting. The politics of independence versus union in Scottish affairs have always been complex. Caught between reforming the union and facing an unknown experience with independence, most Scots stump for a position in the middle, favoring extensive devolution without complete exit (Mitchell 2016, 81; MacWhirter 2014, 11–12). The political and constitutional history of the UK in the latter half of the twentieth century documents a shift toward increasing authority and autonomy for the region. This trajectory has been explained in terms of divisions over policy issues in Thatcherite Britain and the effects of a persistent pattern whereby Scottish votes rarely translate into British governing power. It is also related to developments within Scotland itself including the discovery of oil resources and shifts in expectations around public entitlements, along with popular movements aimed at renovating the constitutional relationship with Westminster (Keating 2001, 199–262). These movements primarily got behind devolution, but also encompassed a renewed focus on the Scottish claim of right and constitutional innovation (Devine 2017, 192–4).As a result of these developments, the new century began with a newly independent Scottish Parliament, and shortly after, with an SNP government committed to seeking independence. Despite the commitments of the SNP government, devolution remained a critical in-between position on the Scottish question. The Scottish government had originally sought to include maximum devolution as an option on the referendum ballot, but British authorities overruled the plan in the name of establishing a clear question. Their view was that a stark choice between independence

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and union was required for a decisive result. Indeed the brevity of the question has been praised as “a model of simplicity” and “a template of clarity,” on the grounds that it “invites no alternatives” and would “produce defnitive and reliable conclusions” (Levites 2015, 396, 401–3; Liñeira and Cetrà 2015). What was not anticipated by any party was that, in the absence of a middle-ground option, independence would gain signifcantly against the status quo.The choice was certainly stark, but in a region where devolution traditionally commanded a plurality of voters, the effect of its exclusion may have been to drive interest toward the “yes” position as the only option for change. In contrast, the “no” campaign needed to generate enthusiasm for a null outcome that would not produce meaningful change. Combine that with an innovative, high-engagement “yes” campaign and polls registered a signifcant rise in support for independence. It was in this context that the leaders of Britain’s main unionist parliamentary parties issued what has become known as “the vow.” Delivered in the fnal two days of the campaign, the “vow” was a commitment to rapidly implement extensive new devolution measures in the event of a “no” vote.Thin on detail but grand in gesture, the commitment was photoshopped onto “mock-vellum” and published on the front page of a local newspaper (Devine 2017, 241). So after careful effort to eliminate devolution in the name of clarity, it made a spectacular eleventh-hour appearance. By the time Scots went to the polls, they were faced with two offcial options on the ballot paper and a third option injected into the debate by the same authorities that had insisted on a binary choice to ensure clarity.The last-minute addition is regarded as having “sealed victory” for the no campaign (Page 2016, 289). The “vow” was not the only extraneous factor at play in the Scottish debate. Even as Scots went to the polls on the independence question, the prospect of a Brexit referendum was on the horizon, making it less clear than ever how a Europhile Scot should vote. Independence meant the risk of being put outside the EU because of unclear rules around post-secession membership. Union meant the risk of being dragged outside it by a British population that didn’t share Scotland’s views. Refecting on the situation before the Scottish vote, one constitutionalist warned that if the two votes (indyref and Brexit) were held too close together, it would complicate the Scottish choice such that clarity “would be unduly compromised” and any vote would be “fawed with impermissible ambiguity” (Vidmar 2013, 286).As it happens, the votes were less than two years apart, and the Scottish government has cited the Brexit vote, where Scotland voted 62% to remain, as grounds for a second independence referendum. The Scottish experience is instructive. No matter how committed, efforts at clarity take place within a dynamic political landscape that is unlikely to maintain a binary form for the sake of conceptual neatness. When it comes to political founding, ambiguity and uncertainty are endemic to the exercise because “the very nature of politics is ambiguous” and “politics begins where ambiguity exists” (Verrelli and Cruickshank 2014, 212). Whenever clarity is set up as a desirable

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standard, it remains “a society and situation-specifc concept” that is subject to “specifc social factors” (Vidmar 2013, 264, 277, 285). Clarity requires that words have the same meaning for all participants and involves foregrounding “one agreed-upon discourse to the exclusion of all others” so that “to demand clarity, is in fact to demand unanimity” (Verrelli and Cruickshank 2014, 206). If politics is created to address fundamentally contested concepts, then demands for clarity are “an attempt to depoliticize” (Verrelli and Cruickshank 2014, 212). An insistence on clarity means that new voices cannot enter the discourse unless they speak in familiar terms, and it means complex existing preferences won’t translate well into offcial procedures. Democratic discourse should be intelligible, but to preempt the entry of what is unfamiliar or uncertain into public discourse is heavy-handed.The clarity agenda was no panacea for the independence process even in Scotland’s carefully conducted referendum. Its eventual collapse in the face of unionist campaigning is also no refection on the Scottish process, because clarity was an “unattainable ideal” to begin with (Verrelli and Cruickshank 2014, 195). Even Canada, which developed the clarity standard never managed to specify what it actually looks like. Instead of clarifying the meaning of clarity, the Canadian Clarity Act that followed the Supreme Court ruling settled on a Schmittian solution. It identifed who could decide that clarity was achieved.And it turned out to be the Canadian House of Commons, making one body the “sole arbiter” of what clarity means for the entire union (Verrelli and Cruickshank 2014, 206–7). Since the original Supreme Court ruling emphasized mutuality and negotiation over unilaterality, the legislation departs from the intent of the original ruling.13 As far as the clarity agenda goes, the Scottish “indyref ” was primarily instructive for its failures. There was no lack of effort in pursuing clarity, yet the campaign gave rise to a range of complex ideas about what was really on the ballot paper. Most notably, a “no” vote shifted from meaning the status quo to meaning a renewed and reimagined union.This shift in discourse is not evidence of badfaith politics or of one side hijacking the debate and “cheating” their way through an otherwise transparent process. It is precisely what politics is supposed to make possible. Debate should be a venue for new ideas, new proposals, and new possibilities, providing a space for new meanings to emerge. Scottish voters were faced with a stark referendum choice that intentionally “blocked” a long-standing but “submerged consensus” around devolution (Mitchell 2016, 81). Yet the process still ended up accommodating a last-minute option that signaled a lack of closure on the entire independence question. This outcome refects something resilient about Scottish political debate and the British context as a whole. In the end, Scotland is a useful model for the global clarity agenda, but mainly because that agenda did not unfold as expected. Scotland did it not set out to be a global exemplar, and much of what took place is peculiar to the Scottish and British context. When Westminster committed to the process, it was bound “by its own will” and very little else. The use of a referendum did not express some

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global imperative; it refected “an act of comity or grace” well within the powers of the existing commonwealth (Waters 2016, 132, 134).The fnal result was neither a simple endorsement of union nor a mandate for independence, so despite the best efforts of two governments, the process delivered ambiguity rather than clarity and continuance rather than closure. The political and constitutional history of Scotland refects a preference for greater autonomy for the region. But it’s still not clear whether this pattern should be read as indicating a will for separateness or to keep the British compact on a fair and sustainable footing. Any effort to deliver the fnal word on the question assumes it can be defnitively resolved in favor of one position or the other.There is ambiguity over what independence might mean for Scots. But it’s hard to see how union offers much clarity either, given that the union is itself a work in progress and constantly evolving new possibilities for coexistence.The clarity agenda implied in the Scottish model is premised on there being a clear choice between two clear options. Actual conditions in Scotland do not support that model, and it’s doubtful that any political community could resolve the question of independence with the clarity it imagines. Concentrating the moment of founding speech in a referendum does not eliminate the uncertainty of beginning or make language or collective preference transparent. Beginning may simply require some means of skillfully navigating ambiguity and uncertainty.

Festival of Democracy Thus far the Scottish independence experience is instructive mostly for its failures. It is not the home of the world’s earliest declaration of independence, except in the most mythical tourist-driven imagination. Scottish government planning refects an effort to neutralize the disruptive powers of founding by bringing it within the bounds of law and global institutionalism. But this positions continuity to drown out the new, and any declaration that appeared under this model would be a poor shadow of the protean document that originated the practice. Finally, the claim that the 2014 indyref was a model of clarity is diffcult to maintain given an outcome so ambiguous that no one is entirely sure what position won, because no one is quite sure what was on the ballot.While ambiguity is the hallmark of founding speech, ambiguity at a founding generally concerns the source of authority for action, rather than its content – which is always to introduce the new in some form. Given these considerations, it would be easy to conclude that Scottish independence efforts in 2014 didn’t amount to much. Except that the broad consensus is that Scotland-UK relations are markedly changed, so that those advocating Scottish autonomy appear to have “lost the battle but won the war” (Bell 2016, 222). If the history of Scottish sovereignty claims didn’t supply the force behind this change and neither did the continuity of law or a clear-cut referendum result, then what delivered this development? One feature of the Scottish experience

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that remains to be explored is popular participation. The referendum process brought out levels of engagement never seen before in the British context, with a remarkable 97% voter registration followed by an 85% voter turnout.The Scottish indyref was also distinguished by the breadth, variety, and intensity of engagement, and it seemed to have had a captivating effect on many participants. Scottish journalist and “yes” advocate Ian MacWhirter captured the sense of excitement, saying:“Everyone exposed to the 2014 campaign was changed by it in some way … This was politics in real time and it was intoxicating. It was a festival of democracy” (2014, 14). If the referendum campaign proved transformative regardless of its result, could this process have generated some energy associated with founding, even if no defnitive statement of it ultimately emerged? By all reports, Scots took their responsibility for decision-making seriously, albeit with an extraordinary sense of celebration. The referendum debate resurrected the town-hall meeting, along with a uniquely Scottish version of whistle-stop campaigning. Poetry, song, art, and theatre performances were used to explore or advocate for various dimensions of the issue or to imagine the “yes” and “no” positions in dialogue (Güvenç 2017). For scholars like Gerry Hassan, a major legacy of the indyref will be the energies of public activism the process brought out. Hassan sees the work of self-organizing artists’ groups like the nonpartisan National Collective as the vanguard of a new approach to politics that he labels a “third Scotland” (2014b). The chief characteristic of this position is that it avoids the inertia Hassan detects on both the left (Labour or Scottish National Party) and right (Tory or unionist) of the Scottish establishment. In its place, the campaign cultivated the readiness to use play, humor, irreverence, and imagination to rethink the possibilities for Scottish politics.14 The referendum campaign triggered a “huge self-education” effort among the voting public, eager to gather facts to inform their decision-making (Ramsay et al. 2015, 67; Devine 2017, 232). Many turned to offcial sources, although, as described above, these were designed to “sell a tangible future” through “portrayals of clarity” in an effort to “pull the future into the present” (Manley 2019, 13, 17). Offcial materials on both sides of the campaign read “like an election manifesto” (Thiec 2015, 4), promoting a misleading idea that one could accept or reject a specifc platform, even though neither was entirely credible.The offcial Scottish emphasis on a bright new future was in tension with simultaneous efforts to assure voters of continuity, when in in fact neither could be assured.15 On the other side, unionist efforts to drive up the costs of independence, what one commentator called the “we’ll wreck the place” tactic, undermined claims about togetherness and harmony (Bell 2016, 221). Efforts to harness hope for a better future, assure continuity in the face of risk, or threaten with dire loss are all at odds with the idea of the future as “empty, unknowable and detached” from the here and now (Manley 2019, 15). Claims about the transformative effects of Scottish participatory democracy should therefore be tempered by recognition that it was

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heavily framed by offcial messaging from two levels of government that aimed to foreclose on political imagination. Political imagination is central to the issues in the referendum because it involved a prospective event. Independence is “inherently aspirational” and rests on a contrast between “an inhibited present … and a liberated future” (Walker 2016, 261–2). Speculation and risk-tolerance therefore played a large part in decision-making, bringing the role of imagination and myth to the fore. Critics point to the role that the myth of Scottish progressiveness played in the referendum debate despite evidence that Scots are no more progressive than the rest of the UK (Hassan 2014a, 32–3). On the other side, the myth of unionist harmony and integrated traditions obscured long-standing problems with Scottish political representation.The debate shaped up around myth and projection in part because the referendum ballot was a forced binary of a kind that tends to polarize positions and “distort complex, nuanced debates.” But while they marked out the respective poles of the debate, these myths were often unsatisfying and most Scots did not “see themselves refected in the certainties of the yes/no vote, rightly judging the debate as one more of ambiguity” (Hassan 2014a, 178). Public participation was at its most interesting, therefore, when it moved beyond offcial messaging or well-worn myths.As noted, the style of participation was often ebullient and artsy, especially on the yes side, although it rarely took the form of a simple endorsement of the offcial position. Pro-independence organizers promoted a “yestival” spirit aimed at mobilizing imagination through a sense of “simple minded optimism” that has been called the “yes” side’s “secret weapon.” The no side tended to scoff at yestival activities on the grounds that “poetry didn’t persuade” but such activities may be at the roots of the referendum’s longterm infuence, for poetry and plays tend to “remain in the mind long after the political arguments have moved on.” Moreover the celebratory, collaborative spirit “allowed practically anyone who felt they had something to say to get involved” (MacWhirter 2014, 53, 56, 67). While the idea of the referendum as a festival of democracy is appealing, the problem with enthusiasm is that it creates a danger of missing or misreading the silences of those who don’t participate. Hassan calls this pattern of silences a “missing Scotland,” and it marks out marginalized populations easily sidelined by middle-class enthusiasm for the novelty of independence (2014a, 377). Hearing from this missing element would require deeper transformations than the Scottish independence agenda allowed. While the “yes” campaign was creative and high on possibility, it’s not clear whether there was an equally resourceful effort to address the questions of loss and vulnerability that political change would entail (Introna 2014), and that omission leaves an important part of the work of founding unprocessed. Despite its limitations, a great many Scots reportedly “enjoyed the unusual moment” of engagement (Ramsay et al. 2015, 76).The extended campaign drew

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participants into a debate that evolved well beyond the yes/no binary on the offcial ballot to consider “how life could change” on the grounds that “another Scotland is possible” (Thiec 2015, 8, 10). And because it escaped the boundaries of traditional state politics, the indyref served as a “catalyst for a new politics to emerge” (Bissell and Overend 2015, 243–4). In this regard, post-referendum Scotland has already “become another country.”The pivot of this transformation was not the vote totals in the referendum, but the effects of participation on the mindset of voters. Hassan calls this:“I have authority” thinking (2014b, 61; 2014a, 176). A similar spirit is captured in the idea of “early days thinking.” The phrase comes from a popular saying that called on Scots to:“Work as if you were in the early days of a better nation.”16 These intoxicating effects sound like Arendt’s idea of “public happiness” come back to life (1963, 163, 110–18).The referendum campaign featured the sharing of words and deeds, as well as actors both professional and political appearing in the public sphere. But Arendt also warned there’s a danger to the heady experience of politics. The danger is that it proves barren, serving up little more than faux leadership and bohemian sentiment (Arendt 1963, 251). The referendum arguably produced limited change beyond the acceleration of devolution and a surprising failure to settle the main question. But while outcomes matter,Arendt’s work suggests that they should not be the entire focus of attention because some part of what makes founding powerful is the experience of politics itself. If the referendum allowed people to fnd themselves at the center of politics, and they liked the experience, then it represented something important regardless of outcome. When people understand themselves as the pivot around which change manifests, Arendt’s powers of beginning reappear. Since the process was able to deliver a decision that transcended the forced binary of institutional politics, this suggests that while the clarity agenda was a bust and no authoritative speech emerged, the Scottish experiment with public happiness bore tangible results.

Conclusion The Scottish claim of right sets an important context for the independence effort but it does not determine its course, in part because its association with the existing union keeps it locked into a given history. The continuity of laws likewise provides a framework for the Scottish project and can be used to generate stability, but cannot underwrite the process entirely. The danger with the continuity of law approach is that, while it eases the experience of political change, it risks obscuring the appearance of freedom. And while the Scottish commitment to clarity in the referendum process was noble, it provides a fne example of why clarity is an elusive political goal. Scotland, in sum, provides an important case because it approached political founding in a contentious and committed way, ultimately did not arrive there, but did arrive at a form of political renewal for surprising reasons.

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The reasons should not really be a surprise. For Arendt, the problem posed by modern revolution had two parts, one concerning stability and another concerning spirit.The problem of institutional stability can be addressed through political tradition and constitutionalism, especially when constitutionalism becomes the focus of the kinds of worship or piety generally reserved for tradition. The problem of how to sustain or “preserve” the “spirit of beginning something new,” however, has not been solved and becomes a “lost treasure” that remains “the privilege of the generation of the founders” in a way that “bewildered” and “haunted” those that followed (1963, 230, 224, 272). Over time, she suggests, the question of politics “degenerated” into “mere administration” and founding was reduced to technical questions around how a new government is established.This is how constitution-making “lost its signifcance” and eventually “cheated”Americans of “their proudest possession” which was their public spirit (Arendt 1963, 117, 226, 229, 231). The Scottish approach to founding is, in this regard, precisely what Arendt might predict. It is characterized by a heavy emphasis on continuity and constitutionalism, while questions of public spirit or public participation are less well understood.The critical moment of founding speech was shifted from a declaration to a referendum in the name of clarity, and the public’s role was reduced to choosing between two words: yes or no. Upon this choice would rest the authority for the entire independence exercise, or alternately signal its closure for a generation.The exercise looks like an attempt to reduce declaratory founding to a single, unequivocal term. But the Scottish process showed that endless complexity and ambiguity can issue from even the narrowest terms.The Scottish festival of democracy may have left the country with a political hangover in the form of unresolved questions on independence, but by dissolving the binary yes/no form, it made a new force felt in the Scottish situation. Or as one commentator put it, the referendum vote returned a uniquely Scottish “not-proven verdict” (Ramsay et al. 2015, 75), so the result cannot be a default to the status quo ante. Postreferendum Scotland has a changed relationship with Westminster and the UK at large, and not only because of subsequent devolution measures. The rediscovery of public happiness reopened what clarity advocates set out to close down, which is the idea that politics could amount to more than the offcial options on offer. Scotland showcases how context and setting shape a founding effort and how bodies and locations complete the operation. Rather than escape these constraints, the Scottish approached the problem of beginning by doubling down on the commitment to Austinian performativity. Predictable and secure,Austin’s system works because everyone already knows what’s going on. But the price of this performativity is always the risk of insincerity.When convention and ritual make all speech a kind of theatrics, words lose their capacity to reveal a speaker or illuminate their actions.The readiness of Scottish offcials to formalize a narrative of operational continuity when few, if any, post-independence policy measures could be assured refects how easily an Austinian performative can slip out of bounds.

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The Scottish approach looks like a global exemplar because it promises that the disorders of founding can be avoided. The decision to set aside the sovereigntyladen Declaration of Arbroath and the populist “claim of right” was emblematic of this commitment. But to deliver on their promise, Scottish offcials had to dabble in new kinds of myth-making so that in this case, the “last instance” that guarantees beginning is not God, Nature, or ancient prophecy, it was law itself. Disorders of speech have not been eliminated from the Scottish setting. Neither are they limited to the ambiguities of the referendum result. Because it positions an actor between a known past and an uncertain future, political beginning cannot be addressed with the sure speech of Austinian performativity without a certain amount of pretense. Grounding the operation of founding in local circumstance, global relations, and constitutional tradition meant the Scottish approach avoided the worst excesses of magical performativity but speech remains a creative and unsteady force. When it aims at persuasion or mobilization, these qualities are amplifed.Austin’s performatives come at the risk of insincerity.Arendtian happiness – the happiness of public spirit and beginning that arises when people rediscover their role at the center of political life – is the cure for insincerity but only because what appears is new and strange. If democratic authority at a founding is rooted in sincere preferences, some disorders in speech should be anticipated. If founding is tied to speech, and if the Scottish case represents an unexpected beginning in the absence of declaratory efforts, then where is the defning voice in the Scottish case? Although offcial Scottish planning made little mention of a stand-alone declaration, it did not entirely rule one out.Yet under the current approach, any such declaration is unlikely to serve as a founding force. Arendt explains that the “grandeur” of the American Declaration consisted not in its philosophy, nor in its defense of the American cause, but in being an action in words (1963, 121). For that to be true, the roots of the document must lie with public spirit, because that is where action unfolds, and not in law or institutionalism where action is preserved and stabilized. The Scottish referendum invoked a high-engagement, high-visibility public spirit. Not everyone experienced the referendum as a happy affair, but they did fnd themselves at the center of Scottish politics with the future in their hands. The contrast between the staid tone of Scotland’s offcial documents and the ebullience and passion of the popular debate seems to echo Arendt’s divide between the constitution as a “dead letter” and politics as a “living spirit” (1958, 169). Public happiness is elusive and easily lost but if a referendum process can awaken it, then something that was present when the American Declaration emerged also reappeared in Scotland. Still, its long-term success relies on the memory of public happiness being sustained in some way, and while the referendum may have created an opening to rediscover this spirit, it’s not clear whether the Scottish experiment has fared any better than the American one with regard to preserving it. What is clear is that the declaration of independence cannot simply be repositioned as a form of constitutionalism in an effort to resolve the tensions of

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beginning.What drew Arendt’s admiration to beginning was not a particular outcome or formula of speech. Beginning is about experiencing or doing politics in the absence of what is reliable and routine. The absence of a stand-alone declaration does not mean the forces Arendt theorized around the American Declaration are absent in the Scottish case. If the declaration as a document has been absorbed into constitutionalism until it is indistinguishable from conventional law, then it may well have run its course as a political force. But the energies it served to voice will not be so easily tamed. So long as public happiness can be rediscovered, the potential for founding speech to recover its lost “grandeur” remains.

Notes 1 There are two places in Scotland’s Future that mention declaring independence. Both refer to the act as regular legislative business and not the stand-alone document seen in the American or Irish case (2013, 52, 338). 2 The SNP government’s policy documents referred to the referendum as a “once in a generation opportunity” (2013, viii, 556). 3 The question of whether Scottish independence actually involves the dissolution of a union between two sovereign entities rather than a typical case of secession determines fnancial obligations and liabilities, post-separation rights to membership in international bodies, and treaty relationships, among other considerations (Bell 2016). 4 The most famous line from the Arbroath Declaration reads:“for, as long as a hundred of us remain alive, never will we on any conditions be subjected to the lordship of the English. It is in truth not for glory, nor riches, nor honours that we are fghting, but for freedom alone, which no honest man gives up but with life itself ” (Bothwick 2005). A translation is available online at: https://webarchive.nrscotland.gov.uk/20170106 033856/http://www.nas.gov.uk/downloads/declarationArbroath.pdf. 5 Studies found that parliamentary references to the Arbroath Declaration appeared more in the frst seventeen years of the Scottish Parliament than in the previous 100 years at Westminster (Harrison 2017, 444). 6 The Declaration of Arbroath is never directly cited in Scotland’s Future and the Scottish claim of right appears only once.The SNP leader Alex Salmond had, in years previous, cited the Declaration as evidence that the Scots were “a chosen people, highly favored of the Lord” (Verrelli and Cruickshank 2014, 201). But during the referendum, such references were decidedly muted. In its closing days, he attended an event at the ruined abbey of Arbroath but used the event to issue what he called a “declaration of opportunity” keeping on message with the forward-leaning focus of the government’s position (BBC 2014). 7 Scotland’s Future uses terms around continuity (continuing, continue, etc.) well over 400 times in 600 plus pages and mentions constitutions or constitutionalism over 200 times. It uses other terms associated with political beginning sparingly.The term “founding” appears only four times, and declare/declaration, ten times (2013). 8 It is, in theory, also possible that a state other than the parent state might object to an independence project. For example, Spain might delay Scotland’s entry into the EU on the grounds that it incentivizes Catalan independence efforts. Scottish efforts at lawfulness address such third-state concerns. Since the Spanish constitution effectively rules out secession, the lawfulness that enables Scottish independence would simultaneously prevent Catalan independence. 9 The Quebec Secession Reference case inspired EU legal theorists to consider what might qualify as unwritten or underlying European principles that could organize secession efforts in the Scottish case.The European reimagination of the Canadian case

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10

11 12 13

14

15 16

led in a number of directions, and the resulting proceduralism did not always indicate an easy transition to membership for an independent Scotland (MacIver 2019). Scotland’s Future does suggest that the founding legislation for independence would hold special symbolic signifcance. Other government materials maintain that the legislative process would, however,“be subject to the usual parliamentary procedures and enacted in the normal way” (Scotland and Scottish Government 2014, 5). It would also be based upon a grant of powers from Westminster (Scotland 2013, 338). As Neil Walker put it, the arrangement is an “awkward and, arguably, inadequate vehicle” to express the SNP vision of popular sovereignty (2017, 257). Or as Gerry Hassan said with regard to dogmatic claims on both sides in the independence debate,“the future cannot be future-proofed” (2014a, 14). MacWhirter explained that the result was “fascinating in its ambiguity.The Unionists didn’t quite win, and the Yes campaign didn’t quite lose” (2014, 9). The omission of strict defnitions of clarity from the Quebec Secession Reference judgment may have been one of its most powerful messages. Nathalie Des Rosiers thinks it refected an approach to law where the aim is not to put closure to questions or silence confict, but to offer a process for managing relationships. Under this view, the Court’s “nebulous message on clarity”is “helpful” because it requires parties to talk about meaning and “allows for the debate to continue without shutting up one participant” (2000, 62). Research also found that major media outlets gave more coverage to negative stories on independence suggesting a divide between establishment outlets like the BBC and major newspapers, which leaned “no,” and arts movements like the National Collective, which leaned “yes” (MacWhirter 2014, 93). Hassan calls the attachment to continuity “a kind of psychic crutch, a search for certainty and anchor in a world of fux and change” (2014a, 17). The phrase originates in a poem “Civil Elegies” by Canadian Denis Lee that called on Canadians to reimagine the possibilities for civic participation. Lee’s work was paraphrased and repurposed by Scottish poet Alasdair Gray into lines that became a nationalist anthem (Gray 1983, frontispiece). A version of the phrase was ultimately engraved on the walls of the new Scottish Parliament (McGrath 2013).

References Arendt, Hannah. 1958. The Human Condition. Chicago, IL: University of Chicago Press. ———. 1963. On Revolution. New York: Penguin Books. BBC. 2014.“Scottish Independence: One Month to Go in Referendum Campaign.”August 18, 2014. https://www.bbc.com/news/uk-scotland-scotland-politics-28828332. Bell, Christine. 2016. “International Law, the Independence Debate, and Political Settlement in the UK.” In The Scottish Independence Referendum: Constitutional and Political Implications, edited by Aileen McHarg, Tom Mullen, Alan Page and Neil Walker, 197–222. Oxford: Oxford University Press. Bissell, Laura, and David Overend. 2015. “Early Days: Refections on the Performance of a Referendum.” Contemporary Theatre Review 25 (2): 242–250. https://doi.org/10.1080 /10486801.2015.1020719. Bothwick, Alan, trans. 2005. “Translation of the Declaration of Arbroath.” National Archive of Scotland. https://webarchive.nrscotland.gov.uk/20170106033856/http://www.ht tp://nas.gov.uk/downloads/declarationArbroath.pdf. Cairney, Paul. 2015.“The Scottish Independence Referendum:What Are the Implications of a No Vote?” The Political Quarterly 86 (2): 186–191. https://doi.org/10.1111/1467 -923X.12153.

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Closa, Carlos. 2017. “Troubled Membership: Secession and Withdrawal.” In Secession from a Member State and Withdrawal from the European Union:Troubled Membership, edited by Carlos Closa, 1–11. Cambridge: Cambridge University Press. Des Rosiers, Nathalie. 2000.“From Telling to Listening:A Therapeutic Analysis of the Role of Courts in Minority-Majority Conficts.” Court Review 37: 54–62. Devine, T.M. 2017. Independence or Union: Scotland’s Past and Scotland’s Present. UK: Penguin Books. Gray, Alisdair. 1983. Unlikely Stories, Mostly. Edinburgh: Canongate Books. Güvenç, Sıla Şenlen. 2017.“‘Yae, Nae, or Dinnae Ken’: Dramatic Responses to the Scottish Referendum and Theatre Uncut.” New Theatre Quarterly 33 (4): 371–385. https://doi .org/10.1017/S0266464X17000501. Harrison, Laura. 2017.“‘That Famous Manifesto’:The Declaration of Arbroath, Declaration of Independence, and the Power of Language.” Scottish Affairs 26 (4): 435–459. https:// doi.org/10.3366/scot.2017.0209. Hassan, Gerry. 2014a. Caledonian Dreaming. Edinburgh: Luath Press. ———. 2014b.“State of Independence:The Rise of Third Scotland.” Soundings: A Journal of Politics and Culture 57: 61–71. ———. 2017. “After the Landslide: Scotland Still Marches to a Different Politics, Only Slightly Less So.” The Political Quarterly 88 (3): 375–381. https://doi.org/10.1111/1467 -923X.12407. Introna, Arianna. 2014. “A Post-Indyref Perspective on the ‘Remainder of Normal at the End of Normal’ in Scottish Literature: Disability, Miserablism, and Constitutional Patriotism.” Hungarian Journal of English and American Studies 20 (2): 163–181. Keating, Michael. 2001. Nations against the State:The New Politics of Nationalism in Quebec, Catalonia and Scotland. New York: Palgrave. Levites, Benjamin. 2015. “The Scottish Independence Referendum and the Principles of Democratic Secession.” Brooklyn Journal of International Law 41 (1): 373–405. Liñeira, Robert and Daniel Cetrà. 2015. “The Independence Case in Comparative Perspective.” The Political Quarterly 86 (2): 257–264. https://doi.org/10.1111/1467 -923X.12157. MacCormick, Neil. 2000.“Stands Scotland Where She Did? New Unions for Old in These Islands.” Irish Jurist 35: 1–16. MacIver, Alastair. 2019. “Metaconstitutionalising Secession: The Reference and Scotland (In Europe).” In The Canadian Contribution to a Comparative Law of Secession, edited by Giacomo Delledonne and Giuseppe Martinico, 111–134. Cham: Springer International Publishing. https://doi.org/10.1007/978-3-030-03469-6_6. MacWhirter, Ian. 2014. Disunited Kingdom: How Westminster Won a Referendum but Lost Scotland. England: Cargo Publishing. Manley, Gabriela. 2019. “Scotland’s Post-Referenda Futures.” Anthropology Today 35 (4): 13–17. https://doi.org/10.1111/1467-8322.12516. McGarvey, Neil. 2015.“The 2014 Scottish Independence Referendum and Its Aftermath.” Social Alternatives 34 (3): 34–40. McGrath, Harry. 2013.“Early Days of a Better Nation.” The Scottish Review of Books 9 (1). https://www.scottishreviewofbooks.org/2013/03/early-days-of-a-better-nation/. Mitchell, James. 2016. “The Referendum Campaign.” In The Scottish Independence Referendum: Constitutional and Political Implications, edited by Aileen McHarg, Tom Mullen, Alan Page and Neil Walker, 75–98. Oxford: Oxford University Press.

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Page,Alan. 2016.“The Referendum Debate, the Democratic Defcit and the Governance of Scotland.” In The Scottish Independence Referendum: Constitutional and Political Implications, edited by Aileen McHarg,Tom Mullen, Alan Page and Neil Walker, 277-294. Oxford: Oxford University Press. Ramsay, Adam, Ben Jackson, David Torrence and Gerry Hassan. 2015. “The Scottish Referendum: What Happened and What Next.” Renewal: A Journal of Social Democracy 23 (1/2). http://www.renewal.org.uk/articles/the-scottish-independence-referendum -what-happened-and-what-next. Scotland. 2013. Scotland’s Future:Your Guide to an Independent Scotland. Edinburgh: Scottish Government. Scotland, and Scottish Government. 2014. The Scottish Independence Bill: A Consultation on an Interim Constitution for Scotland. Edinburgh: Scottish Government. http://www.publ icinformationonline.com/secure/d50863.pdf. Thiec, Annie. 2015. “‘Yes Scotland’: More Than a Party Political Campaign, a National Movement Fostering a New Active Citizenship.” Revue Française de Civilisation Britannique 20 (2). https://doi.org/10.4000/rfcb.401. Tickell, Andrew. 2016. “The Technical Jekyll and the Political Hyde: The Constitutional Law and Politics of Scotland’s Independence ‘Neverendum.’” In The Scottish Independence Referendum: Constitutional and Political Implications, edited by Aileen McHarg, Tom Mullen,Alan Page and Neil Walker, 325–346. Oxford: Oxford University Press. Verrelli, Nadia and Neil Cruickshank. 2014.“Exporting the Clarity Ethos: Canada and the Scottish Independence Referendum.” British Journal of Canadian Studies 27 (2): 195– 216. https://doi.org/10.3828/bjcs.2014.13. Vidmar, Jure. 2013.“The Scottish Independence Referendum in an International Context.” Canadian Yearbook of International Law 51: 259–288. https://doi.org/10.1017/S00690 05800011103. Walker, Neil. 2016. “The Territorial Constitution and the Future of Scotland.” In The Scottish Independence Referendum: Constitutional and Political Implications, edited by Aileen McHarg,Tom Mullen,Alan Page and Neil Walker, 247–276. Oxford: Oxford University Press. ———. 2017. “Internal Enlargement in the European Union: Beyond Legalism and Political Expediency.” In Secession from a Member State and Withdrawal from the European Union: Troubled Membership, edited by Carlos Closa, 32–47. Cambridge: Cambridge University Press. Waters, Timothy William. 2016. “For Freedom Alone: Secession after the Scottish Referendum.” Nationalities Papers 44 (1): 124–143. https://doi.org/10.1080/00905992 .2015.1101434. Weiler, JHH. 2017. “Secessionism and Its Discontents.” In Secession from a Member State and Withdrawal from the European Union, edited by Carlos Closa, 12–31. Cambridge: Cambridge University Press.

7 PARADOX, RIDDLES, AND THE SATURNALIA OF LANGUAGE

Theories of constituent power are premised on the idea that it is possible for the people to communicate preferences in meaningful form before a legal order is established.Yet refecting on the question of political beginning in 1998, the Canadian Supreme Court insisted there was no such thing as unmediated democracy. If so, popular sovereignty cannot originate the constitutional project. This argument diminishes the Supreme Court’s own authority because although the Court traced its origins back through 1867 to British institutions, colonial governance is not a strong place to plant the fag of democratic constitutionalism. Resourceful though it was, the Canadian Supreme Court’s Secession Reference opinion shows that law is not an escape from the paradoxical forces of beginning. Because it looks to precedent rather than consent, law has an advantage in terms of stability and is not subject to the “daily plebiscite” of peoplehood (Renan 1996, 49). Arendt recognized the importance of constitutions as a source of stability in a world of political action, but also recognized the chief problem is where they come from. If each legal action draws authority from something before, this sets up a chain of authorizations stretching backward in time. If it stretches far enough, the problem of origins is solved by having them disappear beyond memory.That won’t work for new projects. Because it takes place right before our eyes, the problem of political beginning bedevils moderns who cannot assign their origins to the mists of time.While democracy has an ongoing problem of representation and consent, democratic constitutionalism has a problem of frst consent. This “paradox of constitutionalism” is contained within the “paradox of founding” that bedevils projects new and old. The voice of a democratic people has been held up as the best hope for breaking through these paradoxes, but it in many regards it multiplies the problems. People speak the political order into being, but who are the people? Instead of

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looking for a concrete identity to serve as a backstop on legitimacy, there has been a shift toward process in an effort to address the question of constituent power. The emphasis on performativity arises from this shift and promises to resolve identity questions in the same fell swoop that resolves the founding. But seeing constituent power as a retroactive force that overcomes the contingency of history and redeems origins through ongoing efforts creates fresh challenges. Process either displaces the founding in favor of what follows or it elevates beginning into a magical force capable of perpetually generating the activity to come. In the end, self-authorizing performativity isn’t an escape from the conceptual labyrinth surrounding constituent power; it’s a surrender to it.The promise of performativity is that the illegitimate moment will be brief and self-erasing. Rather than turn away from political history as an inadequate answer to questions of constituent power, this book started with history in the form of founding documents, as well as in recent legal and political efforts to specify conditions for their appearance. Beginning and constituent power may be no less mysterious from the point of view of process, but its artifacts and events are tangible enough, and the effort of participants to look back through history and forward through planning situates founding in extended time, breaking the grip of a singular moment. A closer look at how constituent power worked in two cases, and how it might work in two others, raises serious doubts that it’s possible to articulate founding in the straightforward manner that Sieyès envisioned. Performativity is not a solution to the disorders of beginning because performative speech cannot be relied upon to be orderly or serious enough in uncertain conditions.These problems cannot be addressed through exceptions or exclusions either because some degree of disorder is endemic in language itself.1 The American and Irish founding documents raise issues of sincerity, ventriloquism, fction, emotion, persuasion, ambiguity, anticipation, and excess. The voice in these documents was at turns citational, poetic, prophetic, or riddling, making their message diffcult to pin down. The solution favored in Canada and Scotland aimed at ensuring clarity through a carefully conducted process. But in both cases, the process produced its own anomalies.The Canadian Supreme Court reimagined Canadian constitutionalism by channeling the intentions of long-dead founders alongside a foreshortened constitutional history. The painstaking planning around the Scottish referendum showed clarity to be more myth than reality.The outcome suggested that public spirit is equally if not more important than words on paper. Because they contemplate founding without experiencing it, these cases are not obscured by the soothing forces of retrospective validation. But if the people cannot communicate preferences clearly, even with committed effort, what does this mean for constituent power or for the democracies and liberal constitutions that rest on it for legitimation? Arendt suggests that speech can lead the way through the founding experience, but when speech serves to replicate or compound disorder, it’s hard to see it as a resource.

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No matter how the problem of constituent power is approached, it always seems to lead back to a paradox that pits law and constitutionalism against democracy and popular voice. The paradox has echoes in the cases examined in this book, which divide over whether audacious speech or lawful clarity should win the day.That divide offers only unpalatable choices: Assign political beginning to the realm of magic and mystery, take sides between law and popular voice in the hope that one can tame the other, or learn to live with the irreconcilable.Arendt was a subtle observer of these tensions, but her work doesn’t drive theory toward the same ugly choices. She used a different term for the perplexing experience of founding; she called it a riddle. It matters, because riddles have answers. This chapter will argue that while paradox drives theory toward paralysis, Arendt’s riddles illuminate components of the founding experience that have unexpected potential including the importance of bodies, the convergence of conficting imperatives, and the dynamic between the strange and familiar. Riddling is a kind of purposive disordering of language, and riddles combine structure and innovation, stability and disruption to create insight and delight.The disorders of speech in the American and Irish founding documents were similarly central to their operation, even if these disorders were what Canada and Scotland hoped to avoid. What if these disorders are neither hoax nor self-delusion but a way of representing beginning in language? The association between disorder and beginning may be unruly but the relationship is not without some structural memory. It has been captured in traditions like Roman Saturnalia or the medieval carnival, as well as in the Trickster stories of Indigenous law. Carnival and tricksterism express the fragility of authority and legitimacy by pitting them against a world of license and excess.There is no fairness in the Trickster, and the Lord of Misrule who helms carnival deals blows instead of justice. This is not a corrective or mode of remediation, but the festival does create a gap in ordinary time, and whatever loosens the grip of authority, however temporarily, makes its contingency apparent. If disorders in language can evoke that experience, then a certain degree of unsettling ambiguity may be endemic to constituent power. Inescapable ambiguity is hardly more appealing than eternal paradox, but Arendt suggests it can make a new approach possible.When faced with the conficting imperatives that converge on the present actor, she recommends we learn to “move in this gap” (1968a, 14). Moving in the gap between law and popular sovereignty means remaining in the presence of both and in a conceptual space shaped by their infuence. The task of constituent power is to fnd a form of speech suited to that gap. That speech cannot be self-validating because that would detach it from its conditions. But it’s not pure discord either. It might be best to think of it as a form of poetics, one that plays off linguistic structures and human subjectivity for effect.This speech is not inimical to law; it’s law’s byproduct. But it cannot be collapsed back into law either.And it’s not lacking in gravity, but the poetics of founding speech are an inbuilt caution against taking speech, and any authority expressed through it, too seriously.

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Facing a Paradox Performative founding assigns the paradox to an earlier moment, and by so doing, puts the problem behind us. No one has to face the paradox of founding in full force unless they want to create a new political order. But in that case, all the problems food back in and this time the actions are now marked out as suspect. Addressing the paradox of founding by assigning it to the vagaries of history is therefore a non-solution that uses contingency as camoufage. Honig fnds a version of this strategy at work in Habermas’ treatment of founding events, which he uses to boost the credibility of deliberative democracy (2007, 11). Nasstrom fnds a version of it in efforts to address thorny questions around the legitimacy of the people (2007, 632). Current-day founding blows the cover on this operation, which is part of what makes it such an unsettling prospect. The frst temptation when faced with a paradox is to look for a way around it. The idea that democratic paradoxes could be resolved in a performative coup de grâce is appealing for this reason. But as John Borrows observed in the Canadian case, words are not magic crystals that can be sprinkled around to create a new state of being (2002, 96).The subjectivity behind an utterance may be an unstable category, and language itself is prone to disorder, but these don’t add up to a blank check on meaning. The danger with seeing performativity in this light is that when speech is taken as self-validating, something is always being left out. Speech starts in a given context and from a given set of conditions, and it carries the liabilities of those circumstances. Performativity should never be read in a manner that wipes those liabilities off the board. Temporarily suspending the requirements of law and democracy via constituent power looks like it breaks the logjam, after which the rules of democracy can swing back into place, more secure than ever. Derrida’s suggestion that the signature can invent the signer through fabulous retroactivity can thus be read either as a message that destabilizes the entire process, or its saving grace. If the performativity of constituent power signifes, invites, or initiates self-authorizing effects, it raises hope that the results can be taken at face value.At this point, the theoretical perspective becomes fused with what is being theorized, until it becomes a means to generate the endorsement Derrida described. But this presumes that a kind of seriousness is available after the founding that is absent at the original event.This isn’t Derrida’s view of language.The ditch of language into which Austin assigned the unruly performatives of playacting, poetry, and jokes isn’t a separate landscape, it’s a feature of all speech to some degree.The requirement for Austinian seriousness is always a problem that imperils the capacity of a performative to deliver. There’s no way back from Derrida’s view of language to a structure on which to rest secure democratic credentials. This returns founding to the realm of paradox as an impasse created by the convergence of two incompatible imperatives. Paradox works like a stop sign on the path of theoretical progress or perhaps demands a detour into the unknown.

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Thomas Donahue and Paulina Ochoa Espejo suggest that paradox is generally engaged via one of four theoretical styles that together represent the analytic and continental traditions.The frst and most analytic style takes the paradox as a problem and sets out to solve it.The next style, associated with Derrida and the continental tradition, keeps paradox in place and “presses” it to unfold its riches.A third style aims to resolve the paradox by fnding ways to live with it that deepen or enrich political life. Finally there is a style that attempts to dissolve the paradox by exposing it as a pseudo-problem (Donahue and Ochoa Espejo 2016). What each of these has in common is that paradox is a kind of challenge. With the exception of Derrida’s occasional playfulness, the theoretical engagement with paradox looks a lot like making lemonade from the lemons one is dealt. Being caught between two powerful imperatives or contradictory forces seems like an unenviable place to be. But Arendt suggests that it can be generative. In fact, it lies at the root of the entire capacity for beginning. Drawing Arendt into the constituent power debate has tended to sharpen the tension, in part because her work has been read as aligning origins with rupture raising the stakes on the volatile clash between those who create and the context within which they operate (Kang 2013, 150). Arendt chose to avoid the language of constituent power in her own discussions, perhaps detecting the paradoxical patterns of authority that lurk in its formulation. But why reject paradox only to embrace riddles? In fact, the closer Arendt comes to the founding dynamic, the more obtuse she becomes, defaulting to myth, parables, peculiar line drawings, and riddles. If we can understand why a riddle is, in her mind, the best way to address the capacity for profound change, it might provide an avenue for approaching constituent power in new ways.

Arendt’s Riddling Arendt said the “riddle of foundation” involves the puzzle: How can humans “restart time”? (1971a, 2, Willing:214). The riddle itself remains unsolved, although humans arrive in the world ready to tackle it (1968a, 10). Like the foundation legends she admires, the riddle indicates the problem “without solving it” (1971a, 2, Willing:207). Instead, the experience of beginning involves a fertile disorientation that unsettles mental habits around time. But disorientation alone isn’t productive. If beginning opens the world to time-stopping spontaneity, then part of the mystery involves how this breach is spanned again so that time resumes.There are several ways to approach Arendt’s use of riddles to explore this question starting with where riddling sits in her theoretical method. Then there are at least three instances where Arendt uses riddles to represent some aspect of beginning in terms of natality, linear time, and lost treasure. It is well known that Arendtian theory contains confounding elements, and that despite efforts to unpack her thinking on beginning, her foundation riddle remains a challenge. Dean Hammer detects a tension in Arendt’s work traceable

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to Augustine, where “a double meaning of freedom and fatefulness” carries its own “paradox” (2000, 85).2 Linda Zerilli fnds a related tension in Arendt’s theory between the appearance of the new, which is “fundamentally groundless,” and efforts to clothe the new in familiar forms. She describes this energy as an “irreducible tension” between beginning and the political world into which it appears. Zerilli suggests the challenge is to “recognize” and then “try not to resolve” it (2002, 544). In both accounts of Arendt’s work, the tension identifed refects concerns about the reliance of moderns on logical or rational modes of thought that disable the grasp of the new. Rolando Vázquez believes Arendt has a purposeful commitment to “thinking with and through contradictions.” Instead of engaging in theory as a tool, he believes this approach takes theory as a “realm” or “region” for thinking. For Vázquez, the challenge Arendt poses to thinkers is to “step into the unknown” and explore. Thinkers can navigate this realm of their own accord, but to share with others, they must at some point return to the operations of language.This is where Vázquez addresses Arendt’s views on poetry. Poetry is not direct perception but perception rendered “in language.” Because it “reaches towards the absent, towards memory,” it remains close to the source of direct experience and relates to the past as an “open horizon … with no single truth” (Vázqez 2006, 44–5). It thereby provides a ground from which to tame the overgrowth of logical or rational thinking that Zerilli and Vázquez believe troubled Arendt. Arendt’s effort to sidestep standard forms of argument in her own work has had the unfortunate effect of limiting interest in certain of her writings. Lisa Disch believes Arendt’s “disingenuous” defense of storytelling coupled with an unwillingness to fully articulate her method underplays the innovation of her approach and leaves her open to charges of subjectivism (1993, 666).Andreas Kalyvas attributes a relative neglect of certain Arendt writings to her style of theorizing, which resists traditional reading, leaving readers perplexed.The problem, he suggests, is that a focus on political freedom led Arendt to avoid rigid structures of thought in favor of “singular moments of disruption, transformation and innovation.” Since any doctrine of foundation risks “vicious circularity” if this Arendtian quality is lost, Kalyvas believes restoring this understanding of founding requires engaging with these “dangerous and murky” qualities of her work (2008, 189, 192, 199). Arendt advises that those who would imitate her method should take care not to destroy the “rich and strange” in the process (1971b, 1, Thinking:212). This suggests that Arendt’s language of riddles is more than just theoretical fair, it is designed to sustain the air of enigma as something valuable. She suggests that the history of modern revolutions “could be told in parable form as the tale of an age-old treasure” that appears and disappears mysteriously like a mirage (1968a, 5). Notably, a parable is another mode of riddling.3 If Arendt really does take her inspiration from ancient myth, parables, and epic poetry, there may be a good reason that she settles on riddling to represent the founding process.This choice may be less about being obscure than about being provocatively incomplete.

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The Riddle of Natality In some ways, Arendt’s riddle of foundation has an obvious answer. Arendt explains that humans are equipped for beginning because they appear in the world “by virtue of birth” (1963, 203). But does natality really unlock the riddle? Arendt’s claim that humans are a source of newness at the most basic level hardly poses much of a mystery so the diffculty is seeing the riddling quality to this claim. She borrows the idea of natality from Augustine, for whom creation signifes godly omnipotence. On the opposite extreme, birth is a commonplace and natural function. No one has a say over their own birth, and newborns are not equipped to demonstrate greatness, so while it may make the world of action possible by repopulating it, birth is not the site of action. Arendt’s phrasing – that humans arrive in the world “by virtue of ” birth – may indicate something consequent on natality, rather than birth itself. But that thing remains unclear. Birth may foreshadow political beginning, it may even forestall our complete loss of it in dire times, but birth pure and simple is not the answer to her riddle because it leads back to either absolute divinity or biology as necessity. Arendt claims the riddle of foundation is showcased in Virgilian storytelling, and she attributes to Virgil two great innovations. By situating founding within an everlasting cycle, he diffuses the experience of absolute beginning. And by framing the experience using the imagery of birth, he ties his regenerative symbolism to a tangible referent in human life (1971a, 2, Willing:212–14). The hero of the Aeneid relates to his fate as a kind of riddle, and critical moments in the epic turn on deciphering riddles. In every case, however, these riddles are more than just word games; they take the form of a prophecy. Indeed both of the Virgilian works that Arendt cites – the Aeneid and the Eclogues – relate the unfolding of a prophecy. And the births she celebrates do not take place in these narratives, but are prophesied events that lie ahead. It’s not only their legendary quality that distinguishes these stories then, it is their relationship to time.They begin with the end in sight. Readers begin the story assured of its resolution, but unclear how the actors will arrive there.4 Moreover, it seems important that not just birth but births foretold secure the foundation. Birth, which lies at the center of Arendt’s riddle of natality, doesn’t really solve the riddle of foundation, but it does bind together living bodies with anticipatory narratives to assure faith in the renewal of the world.

The Riddle of the Line Because of its direct relationship to beginning, natality represents the most straightforward association for Arendt’s riddle of foundation, but it’s also the least satisfactory. She also uses “riddle” to describe a passage from Nietzsche. In it, he offers an image of time where two paths converge on a gateway inscribed “now.” It follows her discussion of a similar passage from Kafka, only in that case the

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intersecting paths are the location for a fght, involving a lone fgure assaulted from fore and aft by antagonists (Arendt 1971b, 1, Thinking:203–4; 1968a, 7). Both vignettes are about time. Once any effort is made to examine it, time turns into an “intricate riddle” that defes efforts to represent it concretely (Arendt 1971a, 2,Willing:86), but Arendt felt Kafka had found a way around this diffculty. For moderns, time takes the form of a linear “twofold infnity,” an arrangement that knows no beginning and no end (Arendt 1968a, 68). In Kafka’s parable, the fow is not only linear but inward, converging toward the occupant, as both past and future threaten to overwhelm him. Arendt celebrates the fghter in this story as making space for human experience. This “small non-time space in the very heart of time” is also the location for Virgil’s hiatus, a period that opens up when action is suspended between the no-more of history and the not-yet of futurity (Arendt 1971b, 1,Thinking:210). For Arendt, humans are haunted by time because it makes their actions “the most futile and perishable things on earth,” unless they can be remembered (1968a, 84). Time is the thinking ego’s “greatest enemy,” yet to live fully humans must understand themselves as living in extended time, which leaves them dependent on habits of thought that make the past and future present in some form (1971b, 1, Thinking:206).5 Arendt believed Kafka was “the most advanced” in his ability to grasp the temporal relationship because of what she called his “uncanny gift of anticipation.” His innovation was to make thought into an event that manifests as the stilling of time.The past, instead of being a passive “dead weight,” becomes an antagonist to be reckoned with.And the future is neither empty nor preordained, but exerts its own infuence over man who must “stand his ground” between the two. This action represents “the beginning of the beginning,” but it only exists because he fghts the conditions of the world in his mind (Arendt 1968a, 10–11). This makes it an instance where thought – while not rising to the level of full action – changes the world in which action takes place. Arendt added a diagonal line to Kafka’s story of linear temporality, calling it her “corrected image.” The diagonal line represents thought, and walking back and forth in this direction allows the fghter a moment of respite from the fray. It is also the only line with an identifable origin as the lines for past and future that converge on the fghter stretch backward to infnity. Beginning only appears, only comes into the picture, once humans pull back far enough to see themselves in time (Arendt 1971b, 1,Thinking:208–9).The present, the diffcult conceptual operation created by temporarily holding apart the tenses of past and future, is how the idea of beginning can be maintained. In stopping to think, humans break up the orderly fow of time, creating an opening that can redirect the course of events. But Arendt adds that the fghter will stay in the gap to most likely die of exhaustion, so the diagonal does not mark an escape route, just a different perspective. The diagonal breaks the grip of the line on our attention, but the line remains the structure of the fghter’s existence.

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At the center of this riddle is the idea of the present.Arendt discusses the present as a “nunc stans,” a “timeless region, an eternal presence in complete quiet” (1971b, 1, Thinking:207, 210). The concept provides Arendt’s “authorial vantage point” (Arendt 1996, 139).The tenses of past and future each appear “more solid” than the present, because, being absent, they can be more easily resolved in thought.The actions of the present are immediate and therefore retain a certain strangeness. Contrasted against the apparent solidity of the past and future,Arendt calls the present tense “mysterious and slippery.” Even though humans live in the present, it is nonetheless a “fghter’s battleground” because it must be conceptually carved out of the “business of everyday life” (Arendt 1971b, 1, Thinking:205–6, 208). Defending a space for the present tense means encountering the world in less comfortable, less familiar ways; ways for which we cannot be equipped using past or future imaginings.

The Riddle of Lost Treasure Arendt closes her discussion of Kafka’s parable by referencing a passage from The Tempest that describes how time transforms human materials into treasure. Since Arendt said modern revolution contained some “treasure” (1968a, 5) the immediate reference is clear, but what’s most striking about the passage is that by this point, Arendt is not just discussing riddles; she is dabbling in riddles herself.The passage, known as “Ariel’s song” reads as follows: Full fathom fve thy father lies, Of his bones are coral made, Those are pearls that were his eyes. Nothing of him that doth fade But doth suffer a sea-change Into something rich and strange. (1971b, 1,Thinking:212) Arendt may have picked up the passage from Isak Dinesen who used an altered version of it in a story on storytelling. Arendt also uses Dinisen’s image of pearl diving to explain the process for recovering the past as history (Wilkinson 2004). The common theme between story and history is that in neither case can the past be recovered whole.6 Arendtian storytelling provides a “mediating presence” that defends the pluralism of the world against the leveling effects of infnite process (Hammer 2000, 97). History is, for Arendt, the premier form of political storytelling, but in modernity it suffers from an overgrowth of logical and rational thinking which combines with a post-secular fetish for prediction to become dangerously totalizing. Keeping the fertile element in storytelling alive means encountering history as something dead and gone, but also as potent and transformative when

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properly handled. Once the past takes on the mantle of strangeness, the present is opened to fresh action. But strangeness can only go so far. Care must be taken to preserve the past because it provides materials for the present world. Memory requires a “preestablished framework of reference” to help retain content, and Arendt was fond of quoting Tocqueville’s observation that the past is needed to “throw its light upon the future” lest men’s minds “wander in obscurity.” Without language to support its transmission,Arendt’s treasure, which was once known under the name of “public happiness” or as the “freedom” experienced when man “no longer suspected himself of ‘insincerity’,” passed out of human memory, becoming not only strange but namelessness. The treasure of political action may reappear but moderns have lost the language to preserve and transmit it. She cites poet René Char as saying the spirit of political action rediscovered in the French resistance was “left to us by no testament.”Testament, she explains,“wills past possessions for a future,” it “selects and names, hands down and preserves”; like a treasure map it indicates the location and value of riches. This inheritance provides a “framework” without which remembrance is “helpless” (Arendt 1968a, 4–7). Arendt’s treasure is not gone, but it is increasingly hard to recover (Arendt 1968a, 5–6). Strangeness has gone too far, and without the right framework, the treasure reappears as if by magic. The last remaining efforts at a stabilizing force to preserve the treasure, she says, may take the “guise” of higher law (1963, 174). But even these practices won’t long operate if the temporal framework behind them is imperiled. Modernity is characterized by the loss of tradition, although Arendt is not trying to resuscitate it. Instead, she wants to learn how to “move in this gap” (1968a, 5, 14).

Riddles and Riddling Arendt’s riddles highlight three aspects of beginning. It is grounded in human bodies, and the anticipation of new arrivals keeps that embodiedness from becoming mere materialism. It takes place in the fragile and unfamiliar gap between past and future, and a readiness to fght for that space keeps freedom alive. And the language of beginning is not the language of ordinary times. Moderns who have lost touch with this language struggle to locate the associated rewards. In each case, the conventional is made strange. Birth becomes prophetic, time becomes a battleground, and the spirit of revolution becomes inexpressible.Arendt’s unusual method seems to insist that beginning requires us to unsee the familiar. Riddles require a hearer to be willing to look on their store of knowledge with fresh eyes and to hazard new and uncertain interpretations based on trust that answers exist. But they also provide a framework for that effort and an assurance that answers can be found. Could this quality – the readiness to engage in the absence of clear answers, based on a murky half-confdence in past and future – be what Arendt means to place at the center of her theory?

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In its classic form, the riddle is an interpersonal exercise. One person poses the riddle, another answers and “makes public” the solution (Pagis 1996, 81). The common quality of a riddle is that it unfolds as a kind of challenge, contest or “power struggle,” but there are specifc terms to this challenge. A riddle is not simply something unknown that can be discovered with effort. Being stumped by a riddle does not indicate ignorance so much as the incapacity to think laterally. A defning feature of riddles is that the riddlee should have what they need to attempt a solution, based on the way the riddle is posed. But a riddle is also characterized by misdirection. A clever riddle is framed so that the solution is buried behind simple answers that are actually false leads (Pagis 1996, 90). Often it is “only when one has the solution that one knows how to take the question” or even “what it is for it to have an answer” (Diamond and White 1977, 145). In other words, riddles work by making old, unconscious ways of thinking operate against the challenger, tripping them up or leading them down blind alleys, so that to rise to the occasion the riddlee must both draw upon and overcome their storehouse of knowledge and experience. A riddlee must be willing to take a leap of faith into a new form of thinking, because the answer to a riddle cannot be arrived at by logic. Any puzzle that could be addressed using logic would lack a constituent quality of riddles, which involves a kind of uncertainty that cannot be addressed by deduction. It is also worth noting that while riddles stand on their own as a form of speech, they are often framed in ways that resemble poetry, with many folk riddles rendered in rhyme or verse. In fact, once solved, a riddle easily converts into conventional poetry, becoming a “proverb, parable,” or “philosophic poem.”The difference between a riddle and a poem is determined by whether its “metaphorical texture” has been “revealed” or remains hidden, posing as a challenge to its audience (Pagis 1996, 99). Still riddles generally have an answer, and often one right answer as determined by the riddler, so they can represent a narrow form of thinking. But not all riddles are so defnitive. Some riddles require a change in thought so complete that it amounts to a new way of life, one based on a belief in the possibility of an answer, even if it cannot be articulated.These “great riddles” sometimes have an answer – the riddle of the Sphinx has one, for instance – but they are distinguished by providing an especially profound challenge. They don’t just test resourcefulness or cleverness; they disrupt deep structures of thought and may even mark the boundaries of the capacities of thought as informed by speech (Diamond and White 1977, 144, 167).This is how the Chinese sage Laozi’s riddles function, for instance, not as something designed to be answered in speech, but addressed through a change in one’s way of being in the world. As the solution is delivered “in life” as a “form of life,”7 responding to a great riddle requires the readiness to act as if the riddle was answerable, even if the answer hasn’t been found yet, and even if the conditions of the world are such that we may never know the answer. Laozi’s riddles counteract reifcation by inviting students to restart the puzzle anew. By ensuring students repeatedly “walk back and forth” so as to “arrive at

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the beginning,” his riddles provide a way to “give new births” (Patt-Shamir 2009, 412–15, 418, 420). An encounter with a great riddle is therefore a distinct experience. It is a question that should be answerable given the information at hand, yet the answer can evade all comers.Augustine discovered a great riddle in time, but he knew in advance it had a solution because he was already living it. In this regard, riddles have a deep, instructive quality and draw upon “a sort of ‘promisory meaning’” that exceeds “ordinary description” (Diamond and White 1977, 160). Even at their most pedestrian, they remind participants that they can use old ideas to think in new ways, so long as they are willing to unearth the original richness and multiple meanings of these concepts. In this way, riddles require participants to come to terms with a form of pluralism that they have forgotten, but that can be recovered and repurposed. Or to put it in Arendtian terms: they are a way of showing people that their past shapes their future about as much, or as little, as they allow it to. Most importantly, as a commonplace folk practice, they are a reminder that this novelty is accessible to all, at any time. Folk poetry, in Arendtian theory, represents an “essential form of the preservative function” (Storey 2015, 883), which lends it special power when it comes to moving between past and future. What of misdirection? It appears in both Virgilian narrative and Ariel’s song, and riddles are generally couched in terms designed to mislead. Misdirection occasionally saves Aeneas,8 or restores his fagging confdence when too much straight talk from his divine patrons would deepen his despair. Straightness, uniform reliability, is not fertile in this case. Or as the dwarf in Nietzsche’s Thus Spoke Zarathustra says, upon seeing the gateway in the riddle Arendt discusses: “All that is straight lies … truth is crooked” (2006, 125). In the riddle of the line, Arendt fnds salvation in the “diagonal force” representing human thought that intersects with the straight line of infnite time. Could it be that some kind of defection is required for the familiar to become strange? “Unpredictability is not a lack of foresight,” she maintains, because humans are not supposed to follow a straight or predictable course (1968a, 12, 60). Could misdirection in riddles be one way this quality is illustrated? The takeaway from riddling is that old knowledge can go stale and trap us, incapacitating the bearer. Practices like riddling keep language fresh and provide a way to renew thinking. Riddles have a quality that Arendt celebrated under the label of “relatively absolute spontaneity” (1971a, 2,Willing:110) because they bind structure and innovation together.9 Belief in the possibility of seeing things in a new way is a requirement for successful riddlees, just as piety – belief in the possibility of a new beginning – is the chief virtue of founders.Arendt described her writings in Between Past and Future as “exercises” in political thinking designed to prepare us for navigating time (1968a, 14). Reacquaintance with the practice of riddling might qualify as another kind of exercise. Indeed, she calls a parable like Kafka’s “the story of a thought experiment,” and she suggests that Nietzsche’s riddle is “much easier to understand” precisely because it is a riddle (1971b, 1,

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Thinking:166, 204). We must be puzzled or else we cannot understand, because puzzlement is the mark of arriving at possibility. Riddles work by making ambiguity, confusion, and nonsense into the means by which new thinking can appear.They fall into the category of jokes, but they are not only jokes, they also express the wordlessly profound or serve as instructional tools where rationalism proves inadequate. Declarations of independence are not formal riddles even if some detect a riddling quality to their writing. But declaratory founding is associated with similar disorders of language. If a lack of seriousness in riddles represents a framework for new thinking, and if Arendt is right that founding is not a paradox but a riddle, then deciding whether disorder or clarity is more proper to founding speech goes to the very heart of how declarations of independence work.

The Saturnalia of Language Disorders of speech surround issues of political beginning even when the intention is to embed clarity at the heart of the process. The fault lies not with the authors, courts, or governments that struggle to impose order on origins. The experience of beginning involves moving away from the safe and familiar, and its language refects these conditions. Founding speech inhabits a grey zone of language where convention becomes unstable and where the speaker is irredeemably compounded. The American Declaration has been called a riddle, and the Irish Proclamation is poetic.Although, in each case, the stakes were deadly serious, both forms of speech entail a lack of seriousness. For Arendt, epic poetry and riddles best captured founding, but she also believed poetry operated under different rules than other speech. Poets “do not shoulder such a heavy burden of guilt when they misbehave” she explained, because they are chronically unreliable and “one shouldn’t take their sins altogether seriously.”Yet Arendt insists poetry can deliver something “even more important”; it can be “legitimate” (1968b, 211–12). Poetry operates in the marginal zone of language where Derrida’s unruly speech cohabits with Austin’s unreliable performatives. But like riddling, to which it is related, poetry still means something. Austin’s exclusion of poetry from performative utterance doesn’t mean there are no active effects, only that they would be of an extremely irregular kind and therefore diffcult to theorize. For Christopher Mole, this exceptionality lends poetry,“a unique role in establishing the moral seriousness of language.” Mole suggests poetry can be thought of as a kind of Saturnalia, a festival of inversion and freedom where the price of artistic license is temporal limitedness. As with carnival’s Lord of Misrule, the powers of poetic speech depend on the utterance being marked off from conventional times. Notably, that gap is not generated single-handedly by wayward poets, it is also a product of the suspension and reassertion of convention. The powers denied to the misruler, Mole explains, are those also held in abeyance during the poetic exercise. The poet cannot act in ways “that would institute normality, either by

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establishing misrule itself as a norm, or by imposing the standing norms within the Saturnalia.”The demand that the Lord of Misrule be ritualistically sacrifced at the close of festivities refects this divide. “The performative authority of the misruler is, in this sense, essentially exceptional,” he adds, but it is not “set to zero” (2013, 64, 66, 69). We grant poets “a certain latitude,” Arendt says, but that only goes so far and they “can’t get away with everything.” Although she does say their faws are judged in a different way.The failings of a poet are punished by the loss of ability, to which the proper response is forgiveness.The poet’s role, for Arendt, is to “say the unsayable” and “coin the words we live by” (1968b, 212, 228, 247, 249).The breakdown of postwar Europe left all too much unsayable.Without the resources of a ftting language, convention and tradition drain away leaving behind “lost generations.” The failings of poetry therefore manifest as a failure in language itself, when it can no longer bind time together. To fnd ftting speech for their times, a poet must depart convention in order to renew it. At his best, Bertol Brecht flled this role in Germany because his disorderly and innovative speech turned out to be “illuminating trickiness” (Arendt 1968b, 218, 226). Poetry thus joins riddles and other departures from seriousness in keeping language vital and adequate to its task. Arendt suggested that going back to the “reign of Saturn” means being inspired by a truth about beginning and freedom captured in poetry (1971a, 2,Willing:212). Looking back to Saturnalia and carnival for insight on the relationship of seriousness and speech reveals a world in which distinctions collapse. Roman Saturnalia was a festival of free speech where a slave could address his owner as equal. But it was also a time of excess; an all-encompassing excess, Bakhtin suggested, because carnival knows no “footlights” meaning no division between actors and audience. This is “not merely a crowd,” he insisted, because no one is a spectator. It is “the people as a whole, but organized in their own way” (1984, 7, 225). Unlike the “monolithically serious” offcial feasts designed to reinforce Christian authority, Saturnalia was steeped in irreverence and laughter.This laughter was not the scorn and negation that it became with modernity; it was “positive, regenerating, creative,” and its hallmark was ambiguity. Ambivalence is an “indispensable trait” in this setting because it means people do not separate themselves “from the wholeness of the world.”The combination of praise and abuse in festival, Bakhtin explains,“asserts and denies, it buries and revives” because it “expresses the point of view of the whole world” (1984, 9, 11–12, 24, 71). It was possible to sustain these oppositions because what carnival celebrated was not individualized, it was “the drama of the great generic body of the people,” and for this compound body, “birth and death are not absolute beginning and end.” Against the “protective, timeless stability” of established order, carnival represented a “feast of becoming, change and renewal.”The activity demanded a distinct form of communication, one modeled on the noisy hail and banter of the marketplace.These “new forms of speech” were “impossible in everyday life”

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because they broke down conventions of “etiquette and decency” that maintained personal distance (Bakhtin 1984, 10, 16, 88). Carnival thus provided “a reservoir in which various speech patterns excluded from offcial intercourse could freely accumulate.” Because these festivals were offered “by the people to themselves,” they were less “sanctimonious.” In this period, frankness had not yet been associated with the interiority that troubled the American founders, for whom sincerity was a subjective measure of inner truth. Instead the frankness of this early period was “loud” and “concerned everyone” (Bakhtin 1984, 17, 246, 271). What Bakhtin called “the festive voice” communicated liberation from the past and promise for the future. It survived as folk speech until the Renaissance, when it appeared in the writings of Rabelais as a raucous struggle “against the stabilizing tendencies of the offcial monotone” (Bakhtin 1984, 286, 433). This tension between the “inherently crude” popular voice and the “dreary uniformity” of institutionalized order points at what Sheldon Wolin called a “fugitive” quality to public happiness, a treasure he feared was “periodically lost” but could be restored by fnding such moments again (1994, 19, 22–4).What made Rabelais a master of the carnivalesque was that, although he adopted “advanced and progressive” political positions,“he knew the limits of this seriousness” so that “Rabelais’s own last word is the gay, free, absolutely sober word of the people.” Unlike Derrida’s last instance that halts the spiral of regress with mythical authority, the “last word” of the popular festival is earthily tongue-in-cheek, creating a “loophole that opens on the distant future.” Because he worked between orality and writing, this “broad, exacting spirit of the people” was available to Rabelais through “the images of folk humor” (Bakhtin 1984, 452-4).

Festive Voice When it comes to addressing change and renewal, an appreciation for the limits of seriousness was baked into popular practice early on. Disorders of speech and problems of sincerity and clarity surround declarations of independence because the operations of popular voice articulated in these modern documents retain traces of older communal orality. There isn’t a natural voice behind the modern documents. Despite their authorship and signatories, the operative voice is collective and cannot be reduced back to individuals however infuential. If the vox populi has its counterpart in the public spirit of the popular festival as a home for “the peculiar and diffcult language of the laughing people,” we should not expect it to easily make sense. But while ambiguity delivers “an unconditional defense of life” (Bakhtin 1984, 407, 474), disorderly speech has its limits, and at some point, convention breaks down beyond recovery. Arendt’s strangeness is only constructive if it is also familiar enough to support something new. One feature of carnival imagery that Bakhtin reports could not translate beyond Rabelais into pious modernity was the “ambivalence of the grotesque.” The grotesque involves exaggeration or overgrowth of body parts, as well as

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things that issue from the body, which is why sexual and scatological themes are commonplace. Similar themes of enlargement, evacuation, and “dirt” appear in Trickster stories, drawing a line between the two practices.The overgrowth and enlargement of bodies in the grotesque image suggests for Bakhtin a mode of “becoming” that unfolds until the body transgresses its own boundaries to “conceive a new, second body.” These transgressions take place at the points where there is an interchange between body and world, such as eating, drinking, defecation, and speech.The “gaping mouth” in the grotesque is akin to appetite for Trickster stories, because it represents a mode of engagement with the world.The imagery of a compound or doubled body that “features in all the expressions of the unoffcial speech of the people” is with time, Bakhtin says, rendered into a self-suffcient unity (1984, 101, 312, 317). Still, it retains the ability to survive the cycles of birth and death that threaten individual bodies. In its original natural form speech has its warrant in the speaking body, and hazarding a specifc body became for the Romans a way to ensure seriousness in international affairs. But print made possible an overgrowth in voice that set off the search for an associated body.The bodies of individual people can appear in the streets as part of a revolutionary crowd, at the ballot boxes as an orderly electorate, or in the signatures of believers pledging lives to the cause. But the vox populi can only speak from behind a masking device that converts natural voice into something outsized. The enlarged and overgrown body of the people-assingular-noun looks like a late reappearance of the grotesque generated by the multiplying effects of print and mediated through expectations around wholeness and unity.The overgrowth of popular voice cannot be made entirely serious because the imagery behind it retains the unwieldy dimensions of the grotesque. If a defning feature of declarations of independence and founding speech more generally is a certain disorderliness or a general shortfall in seriousness, then they cannot deliver reliable performativity and are unlikely to be tamed by law. Disorders of speech had their own dedicated festivals in carnival and Saturnalia as traditions for uncorking happiness and public spirit. Carnival could also serve conservative ends, of course, discharging dissent through a “sort of psychic and social drainage system.” But these disorders preserved “a focal point for change” and passed along a language in which “catalytic moments” could emerge (Hyde 1998, 187–8). The preservation of disorderly speech in the modern declaration takes the form of the overgrown voice of the people because the grotesque “discloses the potentiality of an entirely different world, of another order, another way of life” (Bakhtin 1984, 48). Austin suggested that convention could experience its own overgrowth until it too complicated speech.What he called “behabatives” were commonplace sayings, such as welcoming a guest, where sincerity is obscured by an excess of conventionality (1975, 81). Because it proceeds from a defcit in convention, the form of speech in a declaration might be called a “misbehavative” or, in light of its overgrown and oppositional qualities, a “deformative.”10 But the truth is we

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already have a name for the category of speech in play, because it relates to poetry or poetics that crosses over at times with storytelling. As Arendt points out, there is a general tendency to take poetry too seriously or seriously in the wrong ways. Doing so strips it of its powers until W.H.Auden’s claim that poetry makes nothing happen appears to come true (1979, 80). But if Auden’s poem is read as wordplay, then the “nothing” that poetry makes happen looks a lot like Arendt’s fertile but disconcerting gap in time. Arendt cited Auden’s line approvingly in a New Yorker article following his death (1975). Patchen Markell suggests it’s a mistake to think she meant to suggest that poetry was impotent. Instead she was appraising poetry’s capacity for “shattering the impression of inevitability” (2018, 530). In effect then, Arendt’s view would be closer to Emily Dickinson’s when she wrote about “hindered words” that communicate nothing. Dickinson’s poem concludes with the line:“‘Nothing’ is the force that renovates the World.”11 If poetry can hold open a space, making nothing happen as opposed to the constant fow of something, poetry can be generative in ways conventional “serious” language cannot. But it takes a willingness to entertain the unconventional and irrational, a willingness to invert the sense-making structures of language, to make such nothingness appear. “The theme of madness is inherent in all grotesque forms,” Bakhtin advises, “because madness makes men look at the world with different eyes” (1984, 39).The Trickster is also a kind of madman, an icon of irrationality and excess contained in speech, but he’s also the Indigenous world’s foremost creator.

Conclusion Arendt’s riddle of foundation points toward a feature of founding speech that is generally taken as a defect. Whenever anyone claims to speak on behalf of the whole people, there’s an immediate credibility problem, so that taking the claim seriously looks like a mistake. Since these claims have had real and serious effects, the desire to fnd some other way to account for them is powerful. If it turns out that a lack of seriousness is a defning feature of founding speech in the modern era, then it’s diffcult to know how that insight is useful for democratic practice or constitutionalism. Does it call on us to take law or democracy less seriously to restore their originary force? Or is it conclusive proof that founding speech is beyond the pale, and for the sake of coherence in law and politics, it’s best discouraged and existing declarations put on the shelf? These choices echo the tensions of the paradox of constituent power. That paradox is a binary built on seeing the two sides of the equation as an incompatible encounter. But what Arendt sketches in her riddle of the line, what poetry represents for language, and what Saturnalia represents for ordinary life is a gap in the fow of things. Seen in this light, the paradox becomes tertiary by virtue of a strange, disorderly middle ground.The paradox cannot be solved or resolved by living up to the terms of democracy or law correctly. But holding both at bay,

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however temporarily, changes the tone of the encounter.The paradox of constituent power that is sharp and insistent from outside the founding moment resolves into something different when the perspective is that of a fgure caught between the inward pressure of the two imperatives. Since this is the position that a democratic constitutionalist actually inhabits, it’s a useful shift. But it still leaves an actor caught in the gap as opposed to viewing it from above using the 1,000-foot perspective of a theorist, and that still looks a lot like being stuck. That is, unless what’s happening at that gap in the line involves some different quality. Arendt’s argument about time is that the inward pressure on an actor is generated by the past and future appearing clearer in the mind than the unsettled present does. But there is movement available in the present that memory and anticipation struggle to capture, so their clarity is never complete. No one departs from the line of time, and the riddle goes unsolved, but we can still move in the gap. Disorderly speech is like Arendt’s diagonal line. It exists only in relationship to a baseline of convention. Against the inevitability of that line, the diagonal is peculiar and disordered, it both breaks up and joins that from which it departs. To put it in more concrete terms, Arendt’s riddle of the line suggests that, while law needs founding speech for the obvious reason of beginning, founding speech needs the structure of law or it goes nowhere. Founding never breaks free to become a self-sustaining exercise. Instead, declarations are also a voice of law, except a disorderly or inverted one. Consider the history. The American Declaration drew on petition protocols, local councils, and emerging international norms but put an unexpected twist on each. The Irish Proclamation borrowed the voice of ancient law and myth to perform actions that were quintessentially modern.The Scottish government anchored their independence efforts in a story of legal clarity and international continuity although neither could be assured. And while Canada has no clear founding moment and no authoritative founding speech that meets the requirements of democratic constitutionalism, when faced with secession, the country’s top court used unconventionally creative if not downright tricky methods to extrapolate a system of law that could structure the effort. Arendt didn’t take up the problems of speech that performativity introduced, even though her theory is based on how action emerges from shared speech, a relationship perhaps nowhere better showcased than in founding moments. But she did acknowledge that speech is not transparent and that we lack “reliable knowledge” of the “motives” of a deed. That uncertainty means speech cannot be a reliable vehicle for transporting will into politics. And that makes the idea of constituent power based on will or intention an unstable thing. Arendt suggested that paradoxes “always indicate perplexities they do not solve” and “hence are never convincing” (1958, 223, 229). She saw political beginning as something irresolvable too, but didn’t believe it suffered from the same problems. The difference seems to lie in how the conceptual operation is conceptualized – as an impasse or as a challenge; a paradox or a riddle.

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Notes 1 I am using disorders of speech to cover issues such as ambiguity, insincerity, and as Austin preferred to put it, a general lack of seriousness (1975, 22). It might also include speech that is overly impassioned or incoherent. The aim is to capture the sense that some speech contravenes commonplace expectations. Misinformation or outright lying could also be characterized as disorders in speech, but ironically they involve a serious intent to deceive. 2 Fatefulness arises because divine presence – the “that which created us” that Hammer identifes – lies behind all Augustinian beginning (2000, 85). 3 For ancient Greeks, the term “parable” carried the meaning of “riddle” or “dark saying” (Kermode 1979, 23). 4 This is where Virgil’s distinctive treatment of prophecy brings his narrative closest to a riddle writ large.Virgil’s prophecies are as likely to deceive as to inform, and on critical occasions, they work by misleading Aeneas and his party (O’Hara 1990). The device throws attention back on Aeneas and the other actors who must navigate the world using murky cues, with little more than their faith that something worthwhile lies ahead. 5 This idea has its roots in Augustine, who pointed out that time is something everyone knows, until asked to explain it. For this reason,Augustine concludes that engagement with past and future is only ever conceptual not actual, because the only time we can know directly is the present (1991, 230, 235). 6 It’s also notable that, as with Virgilian prophecy, Ariel’s song is not just beguiling; it is downright misleading.The “father” described in the passage is in fact alive, and Ariel’s misdirection diverts efforts to locate the missing and restore normality. 7 Laozi called his method “the teaching that uses no words” (1963, 58). Patt-Shamir explains that the “form of life” that serves as a riddle-solution is the same idea that Wittgenstein identifes as necessary for the use of language. It is a way of understanding uniqueness via common terms that is also implied in understanding a poem (2009, 419). 8 It also seems important that after his visit to the underworld, Aeneas is delivered back to the world of the living through a gate used by the dead to send “false dreams” skyward (Virgil 2006, 212). 9 Adam Lindsay suggests this formulation is how Arendt reworks the problem of absolutes in a way that mitigates temporal rupture (2017). 10 Austin actually classed declarations under a category he called “commissives,” which includes promises and commitments “and rather vague things we may call espousals.” Austin’s commissives address situations where it’s clear who is promising and what their commitment involves, so a founding declaration is an ill ft (1975, 151–2). 11 The original text of Dickinson’s poem is available online at: www.edickinson.org/e ditions/1/image_sets/8259.

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Pagis, Dan. 1996.“Toward a Theory of the Literary Riddle.” In Untying the Knot: On Riddles and Other Enigmatic Modes, edited by Galit Hasan-Rokem and David Dean Shulman, 81–108. Oxford: Oxford University Press. Patt-Shamir, Galia. 2009. “To Live a Riddle: The Transformative Aspect of the Laozi《老子》.” Journal of Chinese Philosophy 36 (3): 408–443. https://doi.org/10.1111 /j.1540-6253.2009.01527.x. Renan, Ernest. 1996. What Is a Nation? Translated by Charles Taylor. Toronto, ON: Tapir Press. Storey, Ian. 2015.“The Reckless Unsaid:Arendt on Political Poetics.” Critical Inquiry 41 (4): 869–892. https://doi.org/10.1086/681789. Vázquez, Rolando. 2006. “Thinking the Event with Hannah Arendt.” European Journal of Social Theory 9 (1): 43–57. https://doi.org/10.1177%2F1368431006060462. Virgil. 2006. The Aeneid.Translated by Robert Fagles. New York: Penguin Books. Wilkinson, Lynn R. 2004. “Hannah Arendt on Isak Dinesen: Between Storytelling and Theory.” Comparative Literature 56 (1): 77–98. https://doi.org/10.2307/4122287. Wolin, Sheldon. 1994.“Fugitive Democracy.” Constellations 1 (1):11–25. https://doi.org/10 .1111/j.1467-8675.1994.tb00002.x. Zerilli, Linda M.G. 2002.“Castoriadis,Arendt, and the Problem of the New.” Constellations 9 (4): 540–553. https://doi.org/10.1111/1467-8675.00302.

CONCLUSION Moving in the Gap

In writing a book about legal speech, Marianne Constable said her aim was to suggest to practitioners ways that they can “be more careful with speech,” because only this heightened care can ensure that our word really is our bond (2014, 4). Language grounds our most important commitments. It shapes cherished relationships and provides the testament that passes intangible value across generations. Speech certainly merits our most serious attention. As far as the voice of constituent power is concerned however, the problem is how to loosen existing bonds suffciently enough to form new ones, without tumbling over into magical or self-validating formulations that depart not only the bonds of seriousness, but the material and lived conditions of speech itself. The forms of speech that Austin sidelined from his original exploration of performative speech turn out to be full of potential when it comes to loosening the bonds we craft through speech. Riddles, poetry, and tricksterism are not about making words into bonds, they are about making an audience aware of the bonds they have. But it takes a certain indirection to make these modes of speech work. That indirection looks like carelessness or insincerity from the point of view of conventional speech. It looks like a defcit in authorization, a gap in validity, for legal or founding speech. But a declaration of independence isn’t falling short on some pre-defned order, it is stepping beyond it long enough to propose fresh commitments.And in that regard, it represents the means to create the beginning of a beginning. According to Arendt,“in the fnal analysis all problems are linguistic problems” (1968b, 204). This book has approached constituent power as a linguistic problem, by asking how people can speak at a founding moment. One of the oldest answers offered by political theory, and exemplifed in Rousseau’s lawgiver, is that founding speech fails to carry the necessary legitimacy at the outset and must

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be leveraged into place via a hoax or imposture.The alternative is that founding speech has some performative capacity that enables it to overcome the circumstances of its appearance, to muster legitimacy either instantaneously in a miraculous moment, or after the fact through fabulous retroactivity.These latter formulas move founding speech away from the realm of hoax but toward something mystical, unfathomable, or exceptional.The cases in this book, through their variety and imperfection, combat this exceptionalism and ground declaratory founding back in its originating conditions in a way that makes it appear less mysterious. This chapter reviews the lessons from the four cases in the book, and notes the way disorder emerged as a major infuence over the conditions of speech, a feature often refected in the forms of speech adopted. Disorder creates an opening for change, and suggests a connection to the fertile in-between that Arendt maps out using the riddle of the line. Modes of speech that loosen the grip of language, that makes it less serious or automatic, may be especially useful in restoring the rich and strange that surround new beginnings, but it’s not clear whether Arendt meant to place a form of speech like poetry at the center of this operation. Considering the place of poets and poetics in her theory suggests an important qualifcation on declaratory founding. Poetic speech can attune an audience to the world beyond convention by a certain indirection in its delivery. That can help clear the ground so that a new beginning is possible, but it’s unlikely that poetry could complete the work of founding single-handedly.That qualifcation helps identify the special work of declarations of independence, for it means they operate in a slightly displaced mode. Finally, the chapter considers the picture of constituent power that emerges from this exercise. This picture calls for special attention to the silences that surround founding speech, reframes the tensions around legitimacy, recalibrates the performative dimensions of popular voice, and reconsiders the way imagination and process relate to the operations of constituent power.

Order and Disorder in Four Cases The frst declaration of independence arrived into a world that was coming to terms with print – a new form of writing that massively enlarged the possibilities for communication. Writing differs from vocal speech in that it doesn’t require the immediate presence of an audience, or even the presence of its author once the original action is complete. In this regard, writing is defned by the dislocation of voice from its origins in the body. Because writing was designed as a system of communication that works when orality cannot, writing always carries some element of absence as a result.That absence, especially the missing speaker, sets off adjustments in communications overall.Whereas intention, sincerity, and meaning could at one point be anchored in a speaking subject, writing loosens that chain and print magnifes the gap exponentially.Those effects were at play in the writing of the American Declaration.

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The American Declaration had a seriousness problem because it had an absent body problem.The dilute and diffuse authorship of the document displaced voice on to a subject no one could entirely locate, and which did not align with the entire population living in the territories it addressed. Try as they might there was no way to manifest the speaker of this document. The Declaration’s signatures provided living witness to the sincerity of the cause, but by then voice and body had already parted company and the signatories were playing witness to a speaker other than themselves. The declaration of independence as a document is thus born out of disorders of speech uniquely related to the modern age.The American founders were operating in a fertile opening made possible by these developments, while struggling to close the credibility gap they entailed. Leaning on existing protocols and norms, including petition-like appeals or declaratory messages to the world, were ways to borrow credibility from surrounding conditions. The moves gesture toward Austinian performativity without actually arriving there, because sincerity problems intervene to derail the operation.The voice in the American Declaration was not simply displaced to an absent speaker, it was diffused and compounded as a result of a high-engagement public spirit that happily borrowed and repurposed whatever served the cause.The American Declaration is therefore full of the kinds of citations that Derrida showed make language itself a disorderly medium. Disorder was also a defning feature of the 1916 Rising in Ireland.Although in this case lived disorder became part of the symbolic system surrounding the Irish Proclamation. By making death and sacrifce a central theme it delivered a founding document supercharged with grief. The Proclamation was ventriloquized through an imagined mother Ireland and couched in prophetic poetry that promised a new destiny in return for fresh sacrifce.The aisling format evoked an earlier tradition where feminized Irish sovereignty featured in legal practices that used specialized poetics to signify mastery of law.At this early point sovereignty was by command, kings were not lawmakers, and juridical voice was submerged in myth and masking, embedded in custom, and authenticated by the singular talent of a gifted speaker. Surely it is of some signifcance that the speech evoked in the Irish Proclamation operated in exactly the zone where a lack of seriousness torpedoes the Austinian performative? Modern law partitions off these forms of language as unruly, but in the case of Irish customary law, legal speech begins where certainty and clarity run out, and draws its authority from these zones of ambiguity. Disorders in the Irish Proclamation are not limited to its mythical referents. The Irish tradition of epitaphs denied and fery graveside eulogies appears in the Proclamation as the uneasy ghosts of the patriot dead. Pearse’s discourse of the dead is full of the “disorders of desire” that Cavell describes as the hallmark of perlocutionary speech (2005, 185), albeit inverted into grief. Less celebrated than their performative cousin, perlocutionary, or what Cavell called “passionate” utterances, shift the locus of operation forward in time and transpose it from a formal and conventional setting toward something intimate and subject to failure.

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Cavell suggests perlocutionary speech is associated with behaviors like seduction and imagination and for this reason, it foregrounds vulnerability and risk. In politics, it takes the form of oratory that attempts to “recognize or create a group to whom I speak.” Because perlocutionary effects are never guaranteed, and cannot be pre-packaged into conventional speech formulations (consider the absurdity, for example, of seducing a listener via the utterance: “I hereby seduce you”), a speaker has to be especially resourceful in bringing them about. Any such utterance is, as Cavell puts it, a way of “staking our future” (2005, 173, 182, 185).1 The passionate utterance is centered on what comes after speech. But its credibility is grounded in the passions of the speaker. Because it ties the operation of speech to a specifc mindset Cavell’s formula does not escape the absent body problem the American Declaration faced. If anything, it ties speech even more frmly to a specifc state of mind, one characterized by disorder. Although he suggests it can appear in politics, this is a diffcult idiom to scale-up from the personal to the public, and even more diffcult to imagine as the preliminary to a constitution. More importantly, disorders of desire don’t always stop at speech, and the spillover effects imperil more than the heart.When desire becomes excess, real bodies become collateral damage. Austin may have been too clinical in his account of performative speech, leaving no place for the disorders Cavell identifes. But disorder should only go so far, because speech can only serve those that survive the experience. Where founding documents appeared in America and Ireland, disorder and a lack of Austinian seriousness appeared with them, but so did the potential to run to excess. In an effort to avoid this outcome the Canadian Supreme Court recommended terms for a lawful dissolution of state bonds that drew on the practice of constitutionalism. What makes the Canadian ruling extraordinary is not that it recommended terms for a national breakup. It’s that the terms for this breakup were drawn from the realm of the unspoken and unwritten. The Court could entertain these methods because the case asked for an advisory opinion, and not a traditional legal verdict, meaning it had a freer hand than usual.What emerged is a species of law based on a projected scenario that may never transpire, and which blurs the boundary between politics and law. In this regard, the advisory opinion falls into the same marginal zone of proto-law where declarations of independence also appear. The Supreme Court identifed order, continuity, and clarity as defning virtues of law. These principles cannot be extrapolated from Canada’s legal history. The problem with sourcing foundational principles in the Court’s reading of constitutionalism is that Canadian legal history before 1867 and since is much more unruly than the Court acknowledged.Without some level of disorder it is unlikely that Canada would ever have developed, or continued to refne, federalism, democracy, or minority rights, and without those features, its unique mode of constitutionalism could never have emerged.The Supreme Court’s foreshortened history therefore obscures the role disorder played, and continues to play, in the

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evolution of Canadian law. Had it looked beyond 1867 the Court would have discovered that not all law externalizes disorder.The Trickster stories that inform Indigenous legal practice in Canada integrate disorder as an instructive force, because doing so prompts fresh thinking and alerts participants to the conditions of change. The infuence of the Canadian ruling is apparent in the extraordinary emphasis on clarity and continuity in Scottish government planning surrounding its 2014 independence efforts.The Scottish government insisted that independence would not be declared until authorized by Westminster, and only after intergovernmental issues had been satisfactorily negotiated.There would be, therefore, no break in the structure of law, and any Scottish declaration should avoid the issues seen in the American or Irish experience. In the Scottish case, the central moment of speech shifted from a declaratory document to a popular referendum, but as a test case on the Canadian clarity formula, the Scottish experiment was a failure. The process was disordered by the last-minute reentry of a vaguely specifed third option into a closely-fought debate. It would be wrong to interpret this as unfair dealing. In this highly contested context the drive for univocality – being the demand that people express a preference for one side or another that speaks in “one voice” on a question – is artifcial (Beaulac 2020).When speech is artifcial, the conditions of its articulation put sincerity and intention in doubt. Shifting the moment of speech to a referendum does not solve the problem of ambiguity surrounding founding speech because its origin lies less in the absence of clear choices than in Arendt’s public spirit or public happiness, with all the manifold possibilities that entails. Public spirit makes new forms of politics possible, albeit without the familiar stabilizing structures of constitutionalism. It manifests when the “voice of the people” reverts back to its origins in the diverse yet entangled bodies of a population. Like one of Rabelais’ giants, this compound entity is ungainly and absurd but brimming over with life. Like a Trickster, it defes categorization, holds incompatible preferences, and delivers unexpected results. And as with carnival, the exercise is held together by the suspension of the reverence and seriousness that anchors the ordinary world in its conventional bonds.Whether in a founding document or an independence referendum, speech supplies both the structure and the disorders that surround this phenomenon. There is no magic formula that escapes either. Perhaps the most striking thing about the four cases considered in this book is the way they divide over the conditions for founding speech. The conditions under which founding documents appeared in America and Ireland involved ambiguity, disruption, and disorder.The conditions for a declaration of independence in Canada and Scotland are stipulated as clarity, continuity, and orderliness. Why don’t the conditions for future declarations resemble those of the past? One common explanation is that America and Ireland involved postcolonial foundings where some degree of disorder is inevitable. Conveniently, what was successful in these instances also happened to be legitimate. It took disorder to get there

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because a colonial motherland unfairly resisted appropriate actions. Quebec cannot secede from Canada or Scotland from the UK on these grounds because the parent state is (now) a constitutional democracy, so the process must be quite different. Since the international community also has a better sense of what a lawful declaration involves, unilateral efforts will almost certainly fail.Thus the progress of liberal democratic constitutionalism and lawful international order combines to reduce the potential for disorder in political beginning. The line between convention and exception is not as clear-cut as this explanation suggests. At the time of the 1916 Rising Ireland had a robust parliamentary caucus at Westminster, and the drive for Irish self-determination had delivered a law approving legislative independence. So technically Ireland had achieved selfdetermination, on paper if not yet in fact. Behind those events lay a brutal history of colonialism, repeated home rule failures, and northern obstructionism, but the Canadian Supreme Court’s secession doctrine could be read as ruling out unilateral independence in a case like Ireland too, on the grounds that self-determination was either achieved or available, with enough patience and goodwill. The point is not to debate whether early twentieth-century Ireland was suffciently colonized.The issue is that Scotland and Quebec faced similar treatment on occasion and are not extended the same license when it comes to political founding, so it’s important to be cautious of explanations that impose tidy distinctions between what are muddy categories. Disorder at a founding should not be explained away as a colonial anomaly, because such explanations camoufage the work of constituent power behind a narrative that facts do not always support. Instead, the question of disorder at a founding should be taken on its own terms. If disorderly conditions are endemic to the process of political beginning, then founding speech must relate to them in some capacity. It became evident in the Irish case, however, that accepting the idea of founding as naturally chaotic can be dangerously fatalistic, and end by licensing levels of violence that are hard to redeem. Machiavelli’s claim that a successful founding wipes clean even the bloodiest of slates should be repudiated and buried alongside Pearse’s demanding ghosts. Politics that starts with one foot in the grave owes more to decay than to rebirth.The conviction that it is possible to navigate the experience of beginning, even at the level of state creation, without putting lives and bodies at stake, is a critical corrective to a doctrine of founding as excess.The question is whether law provides the right vehicle to do this.

The In-Between Declarations of independence are associated with the voice of the people, and therefore with popular sovereignty and democracy. That framing puts them on one side of the founding paradox and pits them against the structures of law and constitutionalism. Law favors clarity and order, but declarations are associated with popular voice, and that means they don’t only belong to the people, they

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also carry an element of legitimacy critical to law. Successful declarations operate as proto-law that lays the groundwork for more conventional constitutionalism. Yet the inward pressure of law joins with the inward pressure of the people to converge on a would-be founder until their task looks impossible.What if instead of thinking of the demands of law and democracy converging inwards in a manner that threatens to create paralysis, founding was envisioned as a point where the two inward forces meet resistance in some third form? What if the disorder of declaratory founding is a way of pushing back on both imperatives, holding off the demands for perfect law and for unmediated democracy? Or holding them at a distance long enough for change to settle in? Declaratory founding addresses the overgrowth of reason or clarity that surrounds law by introducing something unprecedented into the mix. Or rather it animates something that was always present in the operations of speech, even legal speech, but which is often overlooked in the name of clarity. This is true even when a declaration takes the dedicated constitutionalist form envisioned in Scotland. Because in that case founding speech frst takes place via a referendum before it ever becomes an offcial document. Earlier foundings may have involved more spontaneous activism, but however constrained it might be in its contemporary expression, the festive voice of the people signals something that exceeds the boundaries of constitutional order. But the effect of a declaratory founding is not exclusively to re-introduce the complexities of popular voice. By fxing an authoritative moment in time a declaration also tempers or mediates the overgrowth of voice that fgures in popular sovereignty. As the Canadian case showed, when you are looking for a special form of authority to address the most fundamental constitutional questions, it helps to know where to go. Those who lack a modern founding may fnd themselves compelled to create one in order that political disagreement does not become a populist free for all. Because its constitutive feature is the disordering of speech and seriousness, the rules that apply to a declaration of independence are those that are internal to the operation of language, and these parallel the conditions under which poetry can appear. In poetry, the rules for speech are not imposed from outside. As Arendt explains:“There is no surer way to make a fool of oneself than to draw up a code of behavior for poets,” instead,“a poet is to be judged by his poetry” (1968b, 212). Drawing up a code for founding speech would be similarly hazardous.The effort to do so entangled the Canadian Supreme Court in a questionable rendering of Canadian legal history, meaning the Court does not come away with its own seriousness unscathed, even if the judgment was masterful in many regards. A declaration of independence belongs to both law and democracy, but in an indirect way that expresses the energies of beginning. It is not a magic moment sprung loose from the normal speech environment because its power is drawn from the inversion, disordering, or enlargement of the structures of voice and law. Performatives never depart their speech conditions, and retroactivity cannot camoufage what is fundamentally disordered. Some gap always appears, along

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with some debt to prevailing conditions and some culpability around the resulting silences. Rather than regard these as a liability to be erased or magicked away, disorder can be foregrounded as a constitutive element.A founding utterance and those of regular times are different, and that distinction should not be lost in an effort at post-facto validation. The appeal of retroactive validation is powerful because it closes this gap and makes founding a reverse byproduct of present reception.This sets up beginning as a fawed but self-healing operation. The advantages of seeing founding as a something redeemed by subsequent actions are that it distributes the opportunity for voice across generations, and avoids fruitless questions about the identity of the people (Ochoa Espejo 2011). If the founding voice is disorderly or incomplete to begin with, all the more reason to remedy that over time, or so the argument goes. Since that appears to be what many constitutional democracies have done with their constituent moments, history lends itself to seeing constituent power as an extended process. But the effort to backfll the omissions of beginning through democratic processes risks producing too much stability. If what is new has to compete with the reinforced legitimacy of what prevails, this kind of democracy can become stiff and sclerotic. How can one imperil all the work that has been achieved, all the process that has unfolded, by opening up politics to beginning again? Cycling through the disorders of beginning as a repeating process along the lines that Ackerman describes (1991) escapes some of these rigidities, but poses a problem of having too much disorder in one phase and too much stability in the next. There’s a right amount of tension between law, democracy, and the middleground of beginning that’s productive. Shifting too much emphasis to the follow-on process and away from beginning threatens to leave origins hollow and disappointing. Arendt knew that the concept of process monopolized the way moderns think about time. The “twofold infnity” captured in the riddle of the line represents the idea of time as a continuity that “knows no beginning and no end.” But she cautioned against its implications. Unlike humans who renew the political world by entering and exiting it, the endlessness of process causes humans to lose sight of the actions that inspired it.As Arendt explained “single events and deeds and sufferings have no more meaning here than hammer and nail have with respect to the fnished table” (1968a, 68, 80). The gap in the line is what keeps time vital. But if the gap marks a rupture, then the problem of absolutes reappears until discontinuity troubles the entire process and turns performatives into a magical escape driven by desperate necessity. Those who focus on process are right to insist that something connects origins with what follows, but that connection must maintain beginning as a special event. In the absence of a magical capacity to elevate speech above its circumstances, process concerns not only what comes after a founding but what was in place before it occurred. Arendt’s skeptical comments on process must therefore be tempered by the sense of connectedness she associates with memory and

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anticipation including how they make action possible. The gap of the present where the new appears is contained between a past and a future. It exists and is defned by that between-ness, and by how it connects one temporality to the other, if only in the mind. That is still a process, but clearly a different one than Arendt associates with modern temporality. Alan Keenan says foundation acts as a “hinge word” in Arendtian theory, because it describes the relationship between different modes of freedom, frst as beginning and then as the stabilization of a political system (2003, 77). Lewis Hyde suggests that Tricksters can be thought of as “joint-workers” and the imagery of joints in Trickster stories suggests, for Hyde, a turning point, fexibility, and loosening up.Articulation – the same term is used for both joints and speech – is thus the work of tricksterism. When two strong parts connect, as in the body, Hyde points out that the more each element is developed, the more it will “draw apart from the other, and the larger structure lose vitality” until the system is “broken into domains that no longer speak one another’s language” (1998, 256, 259). Joints mark a separation, but also a connectedness, and they work by introducing angular motion to the body. The image provides a way of relating opposing forces that doesn’t entail a clash or impasse but rather a point of common fexibility.

Poets and Poetics If poetics is taken as indicating some quality of speech that also appears in declarations of independence, it’s fair to ask whether Arendt saw poetry as especially consequential in terms of the world of action, or in terms of political beginning more specifcally. Certainly she defended poets against their critics, but only by saying they shouldn’t be taken too seriously, and that their inevitable transgressions should be forgiven rather than punished.And she admits an occasional great poet to the ranks of storyteller who preserves the space where action can appear, but most of the time poetry is serving less elevated aims. Take her view of folk poetry, for instance. She acknowledges it has popular appeal, but describes it as the repository of record for invisible people and their quotidian dramas (1968b, 238). She described Walter Benjamin as someone who “thought poetically” but this turns out to describe his capacity for bricolage and “purposeless strolling.” Critically, he is not a beginner and his writing never “introduces a new genre” (Arendt 1968b, 165–166, 155). The argument that constituent power is rooted in a folk imaginary, as Kevin Olson has suggested (2016), or that it has some affnity to the bawdy language of popular carnival as was suggested in the previous chapter, looks unpromising from an Arendtian point of view if poetry is a marginal phenomenon. The folk ballad, she explains, grew “out of endless stanzas in which servant girls in the kitchen lamented unfaithful lovers and innocent infanticides.” As an art form, “if it was such,” it was a way that “people condemned to obscurity and oblivion attempted to record their own stories and create their own poetic immortality.”

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The idiom may have inspired beautiful German songs but only by losing its original “crudeness” and “popularity,” and it wasn’t until Brecht that it made its way into the hands of a truly great poet (Arendt 1968b, 238).Arendt seems to associate high poetics with fgures whose chief quality is uncompromising honesty combined with miserable luck. Brecht could largely keep faith with his times, but he remained at the mercy of German history. Her memorial essay for W.H. Auden portrays an unhappy and “profoundly apolitical” fgure who is the victim of his own talent but in whose hands unfaithful lovers and heart-rendering loss become an occasion for greatness unattainable by kitchen staff (1975). Even Benjamin’s poetic thinking seems to infect a certain pathos into his existence. At the center of Benjamin’s poetic thinking, says Arendt, was metaphor. The metaphor “conveys cognition” and is “the means by which the oneness of the world is poetically brought about.” He did not write poetry, and only reluctantly wrote essays because his primary orientation was to revel in the world’s “citability.” More specifcally, citability as “the destructive power of quotations,” an orientation that was “born out of despair” at an era where coherence had broken down (Arendt 1968b, 166, 193). Her essay on Benjamin is where Arendt frst cites Ariel’s song from The Tempest.The song, with its references to the “rich and strange” points at the work of storytellers but really describes something more like grave-robbing.The insight Benjamin had wrought from his despair involved a way to “break the spell of tradition” through pearl-diving among the wreckage of human lives, collecting “precious fragments from the pile of debris.” Such collection is a form of redemption, Arendt explains, but Benjamin’s citations were not language as plain communication.This redemption is achieved by the reduction of speech to its component parts. She explains:“For Benjamin to quote is to name, and naming rather than speaking, the word rather than the sentence brings truth to light,” because the name evokes the “world essence” from which speech arises (1968b, 196–197, 200, 203–4). Benjamin’s fascination with collecting the detritus of a world fallen apart may have some affnity with the “dirt work” of tricksterism, which deals with what gets expelled and left behind. His obsession with citation as a manifestation of poetic thinking refects Derrida’s insistence that citation keeps language from settling into any kind of performative cement. Trickiness was also the hallmark of Brecht’s thinking according to Arendt, and she saw the two Germans as kindred spirits. The poetic honesty or affnity for truth she associates with both is of a complex kind. It is not mere factuality, but emerges from loyalty to the world where everyday facts appear. Patchen Markell suggests that Arendt saw poetry as signaling “a kind of disruptive faithfulness to factual reality.” He describes it as a mode of “responsiveness” that expresses “the poet’s vocation of truthfulness.”That vocation calls on poets to adopt a way of relating to the world that is not straightforward. Poetry is a means to the “disclosure of the disruptive and theoretically illftting fact” that shatters “the impression of inevitability” around events (Markell 2018, 508, 521, 533, 530).

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Markell suggests that what makes action meaningful for Arendt, what makes it a beginning, is a certain “practical attunement”; a “responsiveness” to the “irrevocable” character of an event.This “attitude or stance” toward an activity is always available but not always adopted. Once adopted, it can transform action into beginning because it combats “the illusion of mastery” associated with the idea of a rule (Markell 2006, 7, 12, 10). Because it is not organized around a simple antagonism, this framing relieves democratic politics from the responsibility to be permanently at odds with organized rule, and reduces expectations for purity in origins. But it does pose the problem of how to identify practices and institutions that keep this orientation alive. Insofar as poetry signals attunement and responsiveness to the world, and serves as a way of delivering truth without brute facttelling, poetics suggest a world-building capacity. But it may get there by shifting speech toward the aspects of language that are least stable and serious. Poetry’s displacement vis-à-vis factuality suggests a special quality that aligns with Arendt’s concept of beginning. Or to be more specifc, it aligns with the beginning of a beginning. Because poetry involves a certain angular approach to truthfulness. Emily Dickinson advised that the poet’s job was to “Tell all the truth but tell it slant.”2 Dickinson’s own style of poetic indirection has been described as being “in the service of riddling,” and represents a way to deliver “complex truth” when it entails “pluralistic and paradoxical” qualities (Fathi 2008, 78). Good poems “loosen the map lines of the literal” and “alter the landscapes of the given,” and for this reason, communicate the “energies of the Trickster” in their capacity to generate an “unbinding” that breaks “the spells that already grip us.”The slant in poetry thus helps “lure us past our own not entirely useful timidity and desire for safety” (Hirshfeld 2017, 11, 15), and the poet’s job “involves the transformation of the actual to the true” (Glück 1993, 27). Dickinson’s advice to poets suggests there is a certain insincerity required for poetic speech; a “certain roundaboutness of speaking” that makes “any words feel not simply ‘verse’ but poem.”The qualities of a poem include being “askew, counter, extravagant, peculiar, free and freeing” (Hirshfeld 2017, 11). This angular energy is important for dissolving the tensions of paradoxical thinking because it avoids simple opposition. As Steven Connor explains: “The tangent borrows the energy of what it departs from” (2011, 3). Whereas conventional sincerity refers back to a settled structure of “the already known against which any utterance can be tested.”The poetic slant repurposes and disorders this association. Poetry evokes a speaker – a natural voice – that is a conscious construction; more art than fact. One advantage of this artfulness is that good poetry “if it is sharp enough, may last” although this staying power never escapes a certain anxiety that the authenticity detected in the poem “is not produced by sincerity” (Glück 1993, 29). Ian Storey argues that poetry plays a crucial role in Arendtian theory because it lends durability to memory without sacrifcing strangeness (2015, 874, 886). Of course, if Arendt had wanted to place poets and poetics at the center of her

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theory of political beginning she could have been more forthright in that association. Despite framing political beginning as the return to Virgil’s Saturnalian golden age of lawless freedom, there’s a certain minimization of poetics in Arendt’s account.The ballad is where “the poet becomes a storyteller” yet folk ballads are not revolutionary, they’re traditional (Arendt 1968b, 239).The capacity of a poet to move through a world without making a commitment to fully appear within it may have mitigated some quality she wanted to foreground. Or perhaps she felt poets often made poor political actors: too vulnerable, too compassionate, or too absorbed in their own craft to display the necessary public spirit.3 But the capacity of poetry to manifest a world beyond process, and to cherish even the miseries and debris of a world in decline, means it provides a way to open a space where beginning can commence. In this way poetic slantedness can deliver the “beginning of the beginning,” which is actually a fair description for the work of a declaration of independence. If “fnding the right words at the right moment” is action, as Arendt claimed in The Human Condition (1958, 26), then poets might be especially well equipped for the task.4

Problems of Constituent Power Reconsidered If the voice of constituent power is the product of Arendt’s public spirit, and expressed in some form of poetics or festive voice, it always risks being not quite serious enough for the task.The popular voice that once appeared in Saturnalia and carnival reached a new apex with the help of print, which fueled an overgrowth in voice until its origins in the natural body disappeared. It’s diffcult to see how the problem of sincerity can be addressed for this ungainly speaker. Performativity seems like the best hope for navigating this quagmire, but the theory that works well for individual bodies and voices in conventional politics does not translate well to the popular voice at a founding moment. What makes popular voice signifcant as a manifestation of constituent power is not its capacity to deliver some frm and transparent utterance. Rather than arising from convention and intention, as Austinian performatives do, founding speech may do its most important work by working on the conventions surrounding language, making this utterance more akin to Butler’s transgressive performances than conventional speech acts.Tricksterism challenges its audience to reconsider the standard expectations and commonplace narratives of collective life. Poetry foregrounds artful subjectivity until the usual formulas of convention and social meaning are laid bare by contrast. Both have a loosening effect, until the usual everyday thinking has a little less grip on the imagination. Speech itself becomes loose and uncertain as a result, and that may be the whole point. It is certainly the point of riddles, where initial confusion is used to leverage fresh insight and an expanded mentality. The message of a riddle is always more than the sum of its words. A riddle doesn’t only unsettle a particular concept, it showcases that language can be the bearer of moments of opening or closure. For any

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activity that relies on speech – and both law and democracy are constituted out of speech – remembering this capacity is critical to engaging in certain activities without being trapped by them. It highlights our capacity to create bonds while cautioning against becoming a victim to this capacity. Founding speech cannot be assigned exclusively to the realm of either law or popular democracy because such speech marks an instance where language is remodeled. It begins with a certain exaggeration or projection by actors who know full well they are operating beyond the bounds of convention. Projected identity or poetic speech are not necessarily false. Fable or myth can be the vehicle for distilled wisdom as in Arendt’s idea of testament. Testament and parable are forms of speech where the most precious ideas are saved with their strangeness intact. Myth or fable can be mediating something real, even if the characters in them register as caricatures. Taken seriously in the right way, fables can supplement the stability Arendt associates with constitutions. This was the role that Virgilian poetry served for the Romans.The longevity and stability of tricksterism in Indigenous law speaks to the advantages of keeping this formula alive and in balance. Taken seriously in the wrong way though, it would quickly become unproductive farce. Imagine trying to settle a question in Indigenous law by frst locating the Trickster of legend and querying his intentions. Proving that he cannot be found wouldn’t negate the importance of this fgure or the story he anchors, and it wouldn’t settle any legal dispute, but it would prove someone just didn’t “get it.” How much ink has been spilled in trying to locate the constituent power, or on frustrated protestations that it cannot be found? Sieyès may have pointed at the living and laboring French to fll out his account of constituent power, but the suggestion that this body had the capacity to outlive regimes meant he was not talking about actual bodies. The overgrown and tricky qualities of constituent power were present from the outset.

Self-Validating Retroactivity Of necessity, founding speech operates in a zone of uncertainty where convention is in fux and language itself is an unstable signifer. This is the “undecidability” Derrida identifed in the American document. The undecidability persists even in a setting like the Scottish one where every effort was made to stabilize the founding process as a constitutional act. Only in that case instability emerged as the overly optimistic voice of policy documents that promised seamless continuity.The gap in constitutionalism marked by political founding cannot be entirely covered up. Not at the point of beginning nor after. Efforts to do so will inevitably overreach and look insincere. This is also why self-validating retroactivity can never entirely do the job.The problem is not a version of Zeno’s paradox where over time a political project approaches resolution but never quite gets there. Instead, there is an irreducible

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difference between the speech of ordinary times and the speech at a founding. The difference is that founders must act and speak under conditions of extreme uncertainty, whether they admit to it or not.To begin is to depart from convention in some critical way and that puts speech into a different mode.A population can celebrate the effort involved but the difference in speech should not be reconstructed or rehabilitated through subsequent processes, because this eliminates one very important legacy of political founding. It is a reminder that it is possible to act beyond convention and to speak of things strange and unfamiliar that lie close to the truth of the world. Because it assimilates beginning to conventions of stability, self-validating performativity is how the treasure of revolution is lost and its spirit forgotten.To maintain that memory, founding speech should remain like poetry, somewhat apart. That is why, despite the great affection and admiration Americans have for their Declaration, it is wisely kept outside conventional law. Understood as a hinge-point between law and popular sovereignty, constituent power must be able to maintain some connection or some standing with both. That means the voice of constituent power cannot mark a moment of exception or rupture, and it cannot magically transcend its conditions. But it does remain slightly at odds with convention.

Silence Arendt’s riddle of the line offers an abstracted image of time and change, while a mode of speech like Trickster stories make bodies their referent. Both are ways of remembering the conditions for possibility and freedom. Remembering that bodies are the site of such articulation returns the discussion to performative conditions, including their limitations.The grotesque, oversized body behind popular voice is no guarantee of fairness.All too often it drowns out other voices or wields its disorderly powers in ways that assign someone to silence. Silence is, in many ways, the ultimate speech disorder.With silence, intention and sincerity become impenetrable, but silence has something to say nonetheless. In her discussion of poetry Arendt cited a Brecht story where a man is visited by an “agent of the rulers” who claims the man’s home and asks:“Will you wait upon me?”The man caters to the agent but otherwise never speaks a word.After seven years the agent dies, fat from overeating. The man buries him, restores his home and only then answers “no” (Arendt 1968b, 213). The story echoes one told by Elijah Harper who captured Indigenous-settler relations in Canada as a story of homeowners displaced by self-absorbed guests (Comeau 1993, 138–139). Harper, too, had to bide his time to say “no,” but the answer transformed Canadian constitutionalism. These stories suggest silence retains its own potential for disorder. If constituent power has its roots in the disorderly speech of the people, a program to reform the popular voice to make room for the silenced looks unpromising. But speech has two parts, that of the speaker and the listener. If it’s not possible to reform the disorders of voice at a founding, it might be possible to at least listen

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better afterwards, in an effort to capture the silences rendered by constituent power.The listening that follows founding speech can be distributed across time in ways its original voice cannot. This lends credence to a process perspective on founding, and acknowledges the signifcance of uptake and response, even if careful listening will not complete, correct, validate, or redeem the disorders of founding. If anything, good listening should deepen the disorder by unsettling any undeserved prestige.Yet if disorders in speech are sometimes generative, exposing these disorders should help keep possibility alive.There’s only one silence that listening cannot address. Death is the wrong kind of disorder, there’s no recovering it for a world of speech.The only possibility with death is to bind up the silence through epitaph and return to the world of the living.

Legitimacy and Nonsense Thinking of declaratory founding as a form of speech that goes into the ditch of language, or tarries with the ‘dirt’ of insincerity, makes two dangers apparent. First, it tends to defate the legitimacy of declarations of independence wherever they might appear. Second, it opens up founding speech to certain kinds of nonsense, and therefore runs counter to the enormous efforts put into generating clarity around origins. Opening up declarations of independence to legitimacy issues does not seem like a terribly bad implication. Hans Lindahl suggests that the community established through a founding moment should be thought of as existing in a “mode of questionability” and Alan Keenan sees questionability as a constituent element in democracy (Lindahl 2008, 23; Keenan 2003). Which raises the question of whether the problem of inadequate legitimacy at a founding lies with its form of speech, or whether prevailing systems of order have set unattainable standards for beginning.The legitimacy issue marks the point where the paradox of constituent power can easily become an impasse. Instead of a hinge point between democracy and law, it signals paralysis. Creating a new political order is among the most serious of undertakings. But insisting on fawless legitimacy at a founding would be like demanding there should be no more eggs until we can fully account for the origins of the chicken. Law and legal speech are themselves always operating slightly beyond their purview in terms of what can be specifed and accounted for. As Constable says, law is indebted to “a law of language” that is “in some sense beyond it” (2014, 46). This is a more direct way of saying what Derrida argued, that law necessarily overreaches itself out of well-meaning urgency (1992). Conventional law does not entail a fnal or ultimate legitimacy; it offers legitimacy for now, using the language we currently have available.There’s no reason constituent power should be held to a more divine standard, and no reason its inadequacies should go unexamined either. Alan Keenan has suggested that living up to the requirements for democracy can mean taking an uncomfortable position that gets all the more uncomfortable

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“the more seriously” democracy is taken. Unmet desires for an answer about origins or the identifcation of the “we” in popular voice have real costs and if not attended to can lead to “antipolitical forms of resentment, anger and cynicism.” The solution, he suggests, is to affrm the “diffcult and disappointing character of democratic politics” (2003, 71, 190). While it captures the sense of questionability around constituent power this seems a long way from Arendt’s prescription for public happiness. Rather than affrming disappointment in democracy, this book suggests founding can also be rendered questionable by taking the voice of constituent power a little less seriously, thus making room for a laughing people rather than a disillusioned one. But does maintaining a certain latitude on legitimacy for declarations of independence risk trading clarity for nonsense? Surely the Canadian and Scottish emphasis on clarity is a step in the right direction, and the idea that declaratory founding accommodates a certain indirection or insincerity seems to disqualify it from the careful process these jurisdictions outline.The answer is that in a certain sense it does.When it frst appears in the world the new can manifest as nonsense or the absurd, things that play with conventional sense-making apparatus. The American Declaration was utter nonsense to many Britons, but that was hardly the fnal word on the situation.The Irish Proclamation initially struck its Dublin audience as absurd and even its authors saw their efforts as a kind of foolishness. But the action turned out to have meaning nonetheless. Making people aware of the stakes involved and establishing institutional structures for expressing popular voice is all for the good. But the aspiration for clarity cannot eliminate ambiguity from popular voice for one important reason. Ambiguity originates in people, who may want two incompatible things at once, and who can hold preferences that are obscure even to themselves.There are disorders of desire to be reckoned with in any undertaking, and only the fexibility of language makes it possible to navigate this. An agenda for clarity that insisted on resolving ambiguity wouldn’t be a better representation of the political world. As with the urgency of law, its eagerness to get to an outcome short-circuits something critical. Independence referendums, secession negotiations, and international recognition build a structure around diffcult political decisions. But the voice of the people will not be made clear and unambiguous, not so long as its primary job is to articulate the views of real people and thereby introduce what is unfamiliar and strange into the prevailing order.

Imagination and Process The desire to better theorize the role of constituent power has led to accounts that focus on its role in constitutional-historical processes and in collective imagination.The danger with any such approach is that it can lead to thinking about constituent power as yet another institution, one that can be reconsidered or modifed as necessary. But only constituted powers are subject to such engineering. The

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people are too ungainly for such efforts. Constituent power is not outside the processes of law, democracy, or collective imagination, but it cannot be folded into them either. Assuming it manifests as a carnivalesque upset and inversion of conventional orders means it remains attached to the structures of constituted power without being organized by them.The best that can be done, as Joel Colón-Ríos suggests, is to remain open to these moments of politics, while ensuring their effects are translated back into the stable language of constitutionalism. Regardless of where a theory starts from, the challenge is to understand how stabilizing processes like constitutionalism and world-building capacities like imagination interrelate. Too much process and the political world decays from lack of renewal.Too much imagination and it creates little in terms of meaningful change.The unruly speech of declaratory founding suggests a middle-ground. When speech adopts a form like poetry, riddling, or tricksterism it is not departing the conditions of language, it is using them as scaffolding on which to unfold something new.These forms of speech take conventional processes as the starting point for imagination.This means that law and democracy need not live in different worlds, or play out their role in politics as antagonists. Speech ultimately binds these operations together even if their specifc modes diverge.

Inflected Performativity In some ways, the discussion of constituent power appears to have come full circle and arrived back at something that looks like a poetic mode of performativity. Given its signifcance as an event, there are advantages to thinking about declarations of independence through a performative frame. But there are important qualifcations to be registered once the issues of sincerity, seriousness, poetic indirection, and compound voice are part of the picture.The adjustments that enable anyone to speak in the voice of the people also make the effort unamenable to straight intention or will, so any performativity emerges in a manner quite unlike that envisioned by Austin, and perhaps even by Butler, for whom crowds manifest something like intention (2015, 156).Any claims around will and intent are therefore the most questionable elements of a democratic founding. Which leads to a second qualifcation on the performative framework for popular voice. Clearly these documents are taken seriously. Even efforts that fail can entail serious consequences. But somehow that effort never seems to run out. New declarations keep appearing, and old ones become more treasured with time.They even seem to have a self-renewing quality, as if a population that contemplates their founding experience can never quite get to the bottom of it.That quality has driven the idea that foundings have a mystical or miraculous quality. But they don’t need to be magical to redirect our attention from the everyday inevitabilities of politics. The performative in founding speech is not absolute, it is infected. The infection arises in the move from the standard performative mode of the frst-person present indicative active, to a plural “we” that renders it

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disorderly and suspect. The performativity of this plural mode is not secured at the moment of speaking, nor is it secured retroactively.As with poetic indirection, what’s left unsaid and unresolved may be what draws people back to these documents over and over.

Global Dimensions Although this project looked at four cases related through their British connection, the declaration of independence has had a global career, and a certain pattern of infuence can be detected between these cases. Irish founders mimicked the rituals of public reading that the American Declaration introduced but the excesses of the Irish experience provide a cautionary tale for any subsequent efforts.Wary of these energies, Canadians faced with the question of secession looked to law for a way to resolve them.The Scottish referendum then carefully applied criteria familiar from the Canadian Secession Reference case. It’s as if a common problem taken up in the American founding is being worked on at each new instance, as political beginning and the role of a declaratory founding comes back on the scene.This book took each case on its own terms, but a common element unifes them in the form of an international community that provides a critical audience for all such speech.To the extent that the declaration of independence began as an effort to align with international norms, the evolution of those norms forms part of the circumstances any future declaration must navigate. That evolution is critical to how today’s foundings may or may not occur. Many regions around the world today face the prospect of an as yet undeclared declaration of independence because of prolonged regional or interethnic tensions. Sometimes this forces day-to-day politics to operate in the shadow of a potential declaration without actually arriving at the point of speaking it. Some dimension of this effect is probably operating in cases like Scotland or Quebec. Indeed, in recent cases such as Catalonia, political brinkmanship around a declaration has been breathtaking, and the effort to “seize the initiative” in a manner associated with founding speech played out in real time. But because the outcome in that case was far from the kind of retroactive endorsement declarations of independence are said to rest upon, these theories have little to offer in terms of understanding what’s happening in an incomplete or failed founding. Might the idea of declaratory founding as poetic misbehavative offer a different perspective on the case? As a founding document, the 2017 Declaration of Independence in Catalonia is impressively dry and reads like an extremely compact version of the Scottish government’s policy roadmap for orderly independence.5 It emphasizes “legality, and respect for the law” and assures that external agreements and obligations will be honored in “fraternal solidarity” with the world. It spends a great deal of time recommending “dialogue” and “negotiations” with Spain, and stresses the potential to correct “democratic and social defcits” by opening a “constituting phase.” It ends by urging the government of Catalonia “to make possible and effective this

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Declaration of Independence.” In sum, it reads like a document that was written with limited expectation of success, and considering its circumstances, this wasn’t an unreasonable assumption. Remarkably enough, the frst people to suppress it were its own authors. It had originally been announced seventeen days earlier before being immediately suspended in a move so baffing the Spanish government had to ask for clarifcation whether the Catalan government had in fact declared independence. If this was political theatre, it was theatre of the absurd. The Catalan document wasn’t going to work as a conventional declaration and its authors knew it, so it was issued in a half-hearted, unclear manner that raises questions about how serious or sincere its authors were in delivering it.Yet the document shows up something in Spanish constitutionalism, nonetheless. The Spanish Supreme Court prioritized national unity ahead of popular voice and not only outlawed Catalonia’s independence referendum but also criminalized Catalan political leadership, based on their declaration.While the EU tolerated the Spanish actions out of fears about secessionist “contagion,” the heavy-handed silencing of popular consultation does not look good for any liberal democracy.This may ultimately be the greater threat to Spain’s constitutional project because when constitutionalism is used to suppress political participation, it undermines the authority of law. Constitutionalism that denies the very possibility of constituent power is at odds with democracy, and that’s ultimately a losing formula. Law that pulls too far away from popular support becomes absurd on its own terms, exhibiting a form of “hubris” that invites its own undoing (López Bofll 2019).As the Canadian Supreme Court recognized in the case of Quebec, law that must suppress popular voice in order to continue in force has already lost a critical element of itself.The overgrown popular voice of constituent power that threatens law with disorder is also a critical component in its ongoing stability, because it lies at the root of its legitimacy.

Conclusion When Arendt suggested that moderns have been thrown back on “the elementary problems of living together” (1968a, 141) she meant that the decline of authority in the modern age diminished politics until it is no longer a force that lends durability and permanence to human action. Riddles were one resource she recommends for renewing this effort. Answers to Arendtian beginning cannot be arrived at by logic or conventional judgment because logic entails its own specifc temporality, one that forecloses on radical change.6 Only historians can adequately address the question of the new, and only in their role as storytellers, which includes poets.To capture the tension involved in beginning then, a historian would need to tell a story that not only “recognizes contingency” in how the world looks today, it must also show that this world “could have been otherwise” (Zerilli 2002, 547, 549). Arendtian beginning thus requires people to “conceive of stability and novelty together” (Lindsay 2017, 1032). Arendt’s preference for

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riddles and poetry shows we have modes of speech that deliver this combination. In which case founding speech may still be a performative, yet one that operates through disorderly means rather than legal or procedural ones.And while Butler’s performativity surrenders the speaker but retains some sense of intention, even among crowds, poetics infect sincerity until its work rebounds on an audience in unpredictable ways. A taste for plain speaking and self-evident discourse makes moderns uncomfortable with unruly dimensions of speech like persuasion, desire, insincerity, and ventriloquism. But other traditions internalize the inbuilt disruptions of language. Riddles, poetry, tricksterism, the rosc speech of poetic lawgivers and the grotesque are or were for many centuries traditions that communicate both stability and innovation. If declarations of independence capture something of these earlier traditions, then they belong with these other forms of speech as a resourceful encapsulation of inverse forces. These forms of speech are performative, but not magically so, because they are a product of their conditions and those limitations are never entirely reformed by what comes after. Because it operates in the gap between past and future, Arendt’s call for a testament in language to the experience of beginning fnds an echo in the declaration of independence. The act of founding is rare and exceptional, but the experience of beginning, of standing in the gap of the present with all its freedom, is always available as an exercise in thought and speech. Keeping those traditions in circulation preserves the rich and strange language of beginning for generations to come.

Notes 1 Yarran Hominh believes the perlocutionary features of the American Declaration are underappreciated (2016). 2 The poem that opens with this line closes with the lines: “The Truth must dazzle gradually/ Or every man be blind.”The choice between poetic misdirection or being blinded by truth seems to have some bearing on Arendt’s discussion of the American founders who default to blindness when confronted with the stark reality of their actions.That is, until the American Declaration, and later the Constitution, became the focus of attention. Dickinson’s poem is available here: https://www.edickinson.org/edi tions/2/image_sets/79256 3 Ian Storey maintains that compassion and vulnerability are critical characteristics for an Arendtian poet, which seems to make them ill-suited to revolutionary action (2015, 886).Although she several times cites French poet René Char as someone who experienced and understood the lost treasure of revolution, even if he couldn’t preserve it. This suggests at least some poets make the transition to action (Arendt 1968a, 3–4). 4 As Storey put it, poetry plays a political role by “providing the facts of politics with a grammar out of which each new story can be told.” It also provides a way of “enlarging the collective who” in the world of action (2015, 891–892). 5 There is no offcial version of the Catalan declaration as it was voided on arrival, but an unoffcial translation of the document is currently available at: http://www.catalonia votes.eu/wp-content/uploads/2017/10/27-Declaration-of-Independence.pdf. 6 “Nothing new can emerge in the domain of a temporality construed on the order of logic,” says Linda Zerilli (2002, 547).

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References Ackerman, Bruce. 1991. We the People.Vol. 1: Foundations. 3 vols. Cambridge, MA: Belknap Press. Arendt, Hannah. 1958. The Human Condition. Chicago, IL: University of Chicago Press. ———. 1968a. Between Past and Future. New York: Penguin Books. ———. 1968b. Men in Dark Times. New York: Harcourt, Brace & World Inc. ———. 1975. “Remembering W.H. Auden.” New Yorker, January 20, 1975. https://www .newyorker.com/magazine/1975/01/20/remembering-wystan-h-auden-who-died -in-the-night-of-the-twenty-eighth-of-september-1973. Beaulac, Stéphane. 2020. “Sovereignty Referendum: A Question of Majority? Or How ‘majority’ Actually Begs Numerous Questions.” In Between Democracy and Law: The Amorality of Secession, edited by Carlos Closa, Constanza Margiotta and Giuseppe Martinico, 105–132.Abington: Routledge. Butler, Judith. 2015. “‘We the People’ - Thoughts on Freedom of Assembly.” In Notes Towards a Performative Theory of Assembly, 154–192. Cambridge, MA: Harvard University Press. Cavell, Stanley. 2005. Philosophy the Day after Tomorrow. Cambridge, MA: Belknap Press of Harvard University Press. Comeau, Pauline. 1993. Elijah: No Ordinary Hero.Vancouver: Douglas & McIntyre. Connor, Steven. 2011. “Tell It Slant.” Dandelion: Postgraduate Arts Journal and Research Network 2 (2). https://doi.org/10.16995/ddl.250. Constable, Marianne. 2014. Our Word Is Our Bond: How Legal Speech Acts. Stanford, CA: Stanford University Press. Derrida, Jacques. 1992. “Force of Law: The Mystical Foundation of Authority.” In Acts of Literature, edited by Derek Attridge, 3–67. New York: Routledge. Fathi, Farnoosh. 2008. “‘Tell All the Truth but Tell It Slant-’: Dickinson’s Poetics of Indirection in Contemporary Poetry.” The Emily Dickinson Journal 17 (2): 77–99. https://doi.org/10.1353/edj.0.0184. Glück, Louise. 1993.“Against Sincerity.” American Poetry Review 22 (5): 27–29. Hirshfeld, Jane. 2017. “Poetry Is a Kind of Lying, or, Tell All the Truth but Tell It Slant.” American Poetry Review 46 (5): 11–16. Hominh,Yarran. 2016. “Re-Reading the Declaration of Independence as Perlocutionary Performative.” Res Publica 22 (4): 423–444. https://doi.org/10.1007/s11158 -015-9289-7. Hyde, Lewis. 1998. Trickster Makes This World: Mischief, Myth, and Art. New York: Farrar, Straus & Giroux. Keenan,Alan. 2003. Democracy in Question: Democratic Openness in a Time of Political Closure. Stanford, CA: Stanford University Press. Lindahl, Hans. 2008. “Constituent Power and Refexive Identity: Towards an Ontology of Collective Selfhood.” In The Paradox of Constitutionalism: Constituent Power and Constitutional Form, edited by Martin Loughlin and Neil Walker, 9–24. Oxford: Oxford University Press. Lindsay, Adam. 2017. “Hannah Arendt, the Problem of the Absolute and the Paradox of Constitutionalism, or:‘How to Restart Time within an Inexorable Time Continuum.’” Philosophy and Social Criticism 43 (10): 1022–1044. https://doi.org/10.1177%2F0191 453717701990. López Bofll, Hèctor. 2019. “Hubris, Constitutionalism, and ‘the Indissoluble Unity of the Spanish Nation’: The Repression of Catalan Secessionist Referenda in Spanish

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Constitutional Law.” International Journal of Constitutional Law 17 (3): 943–969. https:// doi.org/10.1093/icon/moz064. Markell, Patchen. 2006.“The Rule of the People:Arendt, Archê, and Democracy.” American Political Science Review 100 (1): 1–14. https://doi.org/10.1017/S000305540606196X. ———. 2018. “Politics and the Case of Poetry: Arendt on Brecht.” Modern Intellectual History 15 (2): 503–533. https://doi.org/10.1017/S1479244316000366. Ochoa Espejo, Paulina. 2011. The Time of Popular Sovereignty: Process and the Democratic State. University Park, PA: Pennsylvania State University Press. Olson, Kevin. 2016. Imagined Sovereignties: The Power of the People and Other Myths of the Modern Age. Cambridge: Cambridge University Press. https://doi.org/10.1017/ CBO9781316286265. Storey, Ian. 2015.“The Reckless Unsaid:Arendt on Political Poetics.” Critical Inquiry 41 (4): 869–892. https://doi.org/10.1086/681789. Zerilli, Linda M.G. 2002.“Castoriadis,Arendt, and the Problem of the New.” Constellations 9 (4): 540–553. https://doi.org/10.1111/1467-8675.00302.

INDEX

absence 2, 26, 33–4, 36, 40 absolute 73, 83, 93, 142, 159, 168; beginning 4, 28, 137, 144; constituent power 93, 168; divinity 34, 43; sovereignty 17, 103 abstraction 5, 12, 15–16, 49, 61, 101 action 4, 10, 13, 15, 76–7, 80;Arendt on 28, 63, 160, 162, 170; capacity for 7, 137; at a founding 17, 47–8, 58–9; in speech 25–6, 29–33, 35–40, 126, 148, 163; and time 51, 54, 72, 138–40 activism 49, 52–3, 61, 111, 122, 158 actor 75–6, 124, 133, 144, 148, 163–4; at founding 17, 28, 54, 73, 126; performative 30–1 advisory opinion 90, 100–2, 104, 155 ambiguity 29–30, 39, 55–7, 132–3, 143–5, 167; and law 101–3, 154; in referendums 111–12, 119, 121, 123, 125, 156 America: colonies 4, 16, 28, 46–9, 52–7, 61–4; founders 76, 113, 145, 154; founding 7, 10, 26–9, 38, 169; history 32, 47, 76, 96, 99, 125; as paradigm 20, 41–3 see also US American Declaration of Independence 2, 4, 46–54, 99, 153–4; context of 16, 37, 41, 58–9, 167; as performative 26–8, 63; speech in 30, 32–3, 55–7, 60–4, 132–3, 164 anticipation 35, 132, 137–8, 140, 148, 160; and American Declaration 60, 63; and Irish Proclamation 70, 72, 80, 84

Arendt, Hannah 4–5, 76–7, 98–9, 131–3, 158–65; on American Declaration 46–7, 53–4, 63–4, 82; on beginning 17, 37, 40, 106, 127, 171; on constitutionalism 97, 117; on founding 19–21, 26–9, 92, 114; on poetry 73–4, 143–5, 147, 170; on public spirit 124–6, 156, 167; on riddles 135–40, 142–3, 147–53 Auden,W.H. 82, 147 audience 15, 21, 33, 38–9, 60–3, 103; American 41, 52, 55; carnival 144; international 47, 169; Irish 67–8, 73, 75–6, 80–2, 167; poetic 79, 83, 152–3, 171; riddling, 141; tricksterism 163 Austin, J.L. 13, 26, 29–31 authenticity 31, 54–5, 57, 61–3, 162 author 12, 70–1, 81–3, 94, 105, 170; of American Declaration 41, 46, 56–7, 60–1, 153–4; authorship 3, 8, 10, 14, 38, 67; of Irish Proclamation 73–4, 77, 79, 167 authority 1–4, 6–8, 11–12, 25–7, 134–5; absolute 17, 43, 145;American 28–9, 37, 47, 52–4, 62–4; Canadian 131; conditions of 38, 97, 99, 126, 158; disorders of 39, 44, 132–3, 152, 154; Irish 68–9, 71–9, 80–3; legal 21, 34–5, 102, 104, 117, 170; performative 13–15, 30–2, 41, 67, 144; Scottish 111–12, 114, 116, 124–5, 156 beginning 17, 20, 37–8, 43, 118; capacity for 4, 73, 76, 124, 135; conditions of 9, 111–14, 116, 126–7, 140, 166; and

176 Index

history 99–100, 104, 106, 159, 170; and law 2, 5–6, 90, 93, 103, 164; moment of 63, 70, 121; problem of 131–3, 135–8, 148, 157, 169; in speech 27–9, 47, 67, 142–4, 152–3, 171; spirit of 125, 165 Benjamin, Walter 160–1 birth 76, 140, 142, 144, 146 body 31, 62, 75, 82, 160; grotesque 144–6, 165; speaking 56–7, 153–5, 163 Brecht, Bertolt 144, 161, 165 Butler, Judith 13–15, 20–1, 26, 29–32, 35–7, 62–3 Canada 93–9, 102–3, 105–6, 155, 158; constitutionalism 20–1, 89–93, 99–102, 104–5 carnival 133–5, 160, 163, 168 Catalonia 169–70 citation 50, 62, 161; and language 25–6, 32–3, 37, 154; and voice 60, 132 clarity 132–3, 143, 145, 148, 154–8, 166–7; in America 56–7; in Canada 21, 90, 102, 105; in Scotland 20, 22, 112–13, 118–22, 124–5 constative 25–6, 28–30, 32 constituent power 1–6, 147–8, 157, 163–8, 170; in America 53, 60–2; in Canada 89, 93, 100, 102, 104; in Ireland 79; in Scotland 111, 116; in speech 13–17, 21–2, 25–6, 35, 39–43, 152–3; theories of 6–12, 19, 131–5, 159–60 constitutionalism 1–3, 5–9, 125–7, 131–3, 147–8, 155–9;American 4, 27–8, 49–52, 76, 82; Canadian 20–1, 91–99, 104–6, 165; disorders of 11–12, 164, 168, 170; European 39, 116–7; global 113; Scottish 118, 121; silence in 90, 100–3; traditions of 42, 53, 55, 89 continuity 7–8, 93–4, 99–100, 104–5, 155–6; in Scotland 112–13, 115–18, 121–2, 124–5, 148; in time 28, 159 convention 52; disorders of 125, 140, 143, 153, 156–7, 163–8; legal 68–9, 104, 111–12, 127; and performatives 14, 18, 21, 26, 30–34, 36–38 credibility 4, 37, 78, 147, 154–5 death 68–9, 71, 74–7, 79–80, 82–4, 166; and birth 144, 146 declaration 33–4, 57–9, 73; of Arbroath 112–14, 126 see also American Declaration of Independence democracy 35, 61, 77, 147, 157–8, 164–8; Canadian 91–3, 96, 100, 102, 106, 131;

defcit in 3, 12; deliberative 42, 134; and law 1, 5–6, 8–9, 91, 133, 170; Scottish 22, 113, 121–5 Derrida, Jacques 11, 13–14, 134–5, 161, 164, 166; on American Declaration 4, 26, 28–30, 43; on language 31–9, 61–3, 79–83 dirt 103, 105, 146, 161, 166 discourse 10, 13, 58, 60–1, 120, 154; American 47, 51, 55–6, 171 disorder 20–2, 77, 102–3, 105–6, 153–6, 169–71; in Canada 90, 93, 100; and performatives 30, 33; in speech 126, 132–4, 143–8, 162, 165–7 disorientation 38, 40, 75; of beginning 20, 28, 112, 135 enigma 11–12, 46, 136 epitaph 74–7, 154, 166 EU 3, 39, 115–17, 119, 170 exceptionalism 4, 6, 16, 77, 132, 157; American 47, 64; at founding 18, 38, 91, 153, 165, 171; poetic 143–4 excess 7, 32–3, 144, 146–7, 155; and founding 75, 80–1, 84, 126, 157, 169 fable 27–9, 35–8, 40–4, 63, 72, 81; as speech 164 fact 25–6, 28, 35, 51, 56, 157; de facto 90–1, 114; factuality 161–2 failure 76, 102, 152, 154; of clarity 120–1, 124, 156; of founding 10, 27, 39–40, 44, 112, 168–9; of governance 48, 58, 70, 72, 157; of law 74, 78, 90, 96, 98–9, 116; performative 14, 20, 29–31, 33–4; poetic 79, 144 federalism 7, 91, 94, 97, 101, 155 founding 4–11, 16–21, 66–9, 133–7, 163–9, 171; and constitutionalism 1–2, 59, 103–5, 111–13, 116–17; disorders of 121–5, 143, 147–8, 152–8; documents 48–9, 81–4, 127; and history 89, 93–99, 159; performative 12–15, 25–7, 29–32, 36–44; and violence 34–5, 74–77 see also America; paradox freedom 97, 140, 163, 165, 171; and continuity 117, 124; national 70–1, 113, poetic 73, 80, 143–4; theories of 136, 160 future 9, 14, 35, 40–1, 73–4, 145; declarations 156, 169;American 51, 54–5, 60, 62–4; Irish 68, 70–1, 84; and past 29–30, 138–40, 142, 148, 160, 171; risk 155

Index

gap 57, 75, 100–2, 143, 164; in authority 10, 34–5, 43, 118, 152–4, 159–60; in time 29, 113, 138, 140, 147–8, 171 gender 31, 36, 38, 62 ghosts 68, 74, 154, 157 global 3, 16–17, 19–20, 58, 90; engagement 47, 69, 72, 112–8; norms 101, 120–1, 126 169 grief 75–7, 80, 154 grievance 52–3, 59, 70, 96 grotesque 145–7, 165, 171 happiness 58, 124–7, 140, 145–6, 156, 167; in American Declaration 48–9, 60 Harper, Elijah 98, 105, 168 history 16–18, 70, 132, 134, 157; perspective of 39–40, 63, 138–9, 159 hoax 30, 37–8, 62–3, 133, 153 identity 12–14, 78, 164; collective 25, 39–40, 61, 159; racial 36 see also gender illusion 15, 29, 31, 68, 162; disillusion 71–2, 167; of voice 57, 62 imagination 6–7, 9–11, 153, 155, 163, 167–8; popular 54, 68–9, 71–2, 94, 100, 121–3 imitation 46–7, 62, 136, 169 imperialism 57, 70–1, 93–4, 97, 99 independence 20, 90–3, 102, 104–5, 111–13, 115–18;American 46, 48–9, 53, 59–62, 71; Scottish 114, 119–27, 148, 156 Indigenous 15, 20, 102–3, 165; peoples 48, 61–2, 92, 95, 97–8 initiative 37, 39, 169 innovation 36–7, 43, 53–4, 118, 136–8, 171; in speech 18, 56–8, 68, 133, 142 intelligibility 15, 17–18, 30, 52, 76, 120 intention 58–9, 73, 76, 92, 148, 163–5; and performativity 30, 32–5, 62, 80, 171; and speech 100, 132, 143, 153, 156, 168 international 11, 21, 47, 64, 115–17, 146; recognition 1, 52, 58–9, 91, 167, 169 interpretation 68, 75–7, 81, 83–4, 140; and law 34–5, 50–1, 90, 92, 94, 103; and performativity 14, 43, 62 interruption 18, 31, 53, 74–6, 103, 105 inversion 15, 29, 99, 103, 158, 168; poetic 143, 147–8 Ireland 21, 67–74, 78–84, 154–7 Jefferson,Thomas 32, 47, 55–8, 62 jokes 13, 30, 32–3, 103, 134, 143

177

judgment 37, 47–8, 59–60, 64, 103, 170; legal 20–1, 78–9, 89–90, 92–3, 158 justice 18, 34–5, 80, 91, 103, 133; international 47–8, 59; social 50, 72 Kafka, Franz 137–9, 142 language 41–4, 64, 97, 113, 121, 142; disorders of 27, 29–36, 153–4, 160–4, 166–7; forms of 13–14, 21–2, 79–82, 134; of founding 3, 6, 16–17, 55–7, 60–2, 111; legal 51, 78, 101, 152, 168; and memory 140, 171; poetic 68, 83, 136, 143–7; process of 25, 103, 158; symbolic 10, 69 law 1–3, 5–6, 11–12, 27–8, 34–5, 166; American 47–52; ancient 59, 68, 74, 77–9, 154; Canadian 89–93, 96–102, 105; and history 92, 94, 99, 155, 158; Indigenous 90, 95–6, 100, 133, 156, 164; international 15–16, 21, 58–9; and reasoning 20, 116–17; Scottish 121, 124, 126–7 legitimacy 28–9, 34, 90–1, 143, 152–3, 158–9; and constituent power 2, 17, 25, 105, 132, 170; democratic 7–9, 13, 42, 112, 134; disorders of 1, 3, 53, 133, 166–7; perfect 37, 83 liberalism 3, 94, 157, 170 and constitutionalism 5, 8, 95, 132 listening 61–2, 84, 103, 165–6 logic 42, 136, 139, 141, 170 loss 60, 63, 102, 122–3, 140; as grief 75, 77, 80–1, 161 loyalists 72, 96, 99 Machiavelli, Niccolò 2, 74, 157 Madison, James 37–9, 57 magic 9, 17, 34–7, 92, 102, 105; capacity for 132–4, 140, 152, 158–9, 165, 168; performative 26, 31–2, 43, 47, 95–6, 126; words 15, 62 masking 78, 146, 154 mastery 32–6, 76, 78, 102, 154, 162 materiality 9, 14, 139–40, 152 memory 76, 126, 133, 148, 159–60, 165; failures of 131, 138, 140; poetry and 68–9, 80–2, 136, 162 metaphor 10, 56, 72, 141, 161 modernity 26–7, 46–7, 79, 83, 147, 154; concepts in 1, 9–11, 15–17, 19, 94; thinking in 70, 136, 139–40, 144–5, 170–1; time in 99, 105, 131, 138, 159–60

178 Index

mother 68–70, 72, 104, 154 multitude 5, 15, 27, 61 mystifcation 34, 55, 78, 136, 139; and founding 4, 7, 82, 132–3, 153, 168 myth 7–8, 92–3, 104–5, 135–6, 145, 164; national 100, 113–14, 121, 123, 126 naming 14, 32, 36, 62, 140–1, 161 natality see birth nation 18, 25, 28, 50, 57–9, 124; as constituent power 2, 36–7, 40, 61; nationalism 3, 67, 69–72, 74, 114, 170; people of 34, 82; 113; state 3, 89, 94 necessity 29, 34, 79, 102, 137, 159; political 48, 94, 106 negotiation 74, 116–17, 120, 156, 167, 169; duty of 91, 104–5 new (the) 5, 14, 27, 90, 117–18; articulating 73, 170; manifesting 18, 25, 121, 136, 160, 167 Nietzsche, Friedrich 137, 142 nonsense 30, 41, 43–44, 143, 166–7 norms 13, 38, 40, 49, 144, 154; international 16, 21, 72, 112, 148, 169; normativity 7–10, 34, 93, 95 obligation 57–9, 77, 92, 169 orality 55–6, 59, 78, 145, 153 order 1–5, 75–6, 81, 144–6, 152–8, 166–9; of authority 62–3, 72; constitutional 11, 49, 51, 94–102, 104–5, 131; orderliness 34–5, 56, 93, 115–17; political 12, 16–17, 25–6, 59–60, 134; representational 14, 42, 132; temporal 28, 84, 136, 138 see also disorder parable 135–6, 138–9, 141–2, 164 paradigm 7, 9, 19–20, 59;America as 43, 48, 61–2, 64 paradox 9, 42, 80, 131, 133–5, 164; of constituent power 1, 147, 166; of founding 143, 157; in thinking 22, 148, 162 parody 11, 21, 31, 36–7, 41, 44 patriotism 37–8, 49, 74, 154 Pearse, Pádraig 73–4, 81, 83, 154, 157 people (the) 13, 97, 101, 131–4, 147, 159; American 28, 47–8, 56–7; carnivalesque 144–6, 167–8; as constituent power 2–5, 7–12, 15–16, 25, 36, 165; Irish 67–9, 72, 77, 84 performativity 12–15, 25–9, 125–6, 132, 163, 168–9; and disorder 10, 96, 134, 146, 158–9, 171; and founding 37–44,

47, 60–4, 67–8, 79–85; and poetics 143–4; theory of 18, 20–1, 29–37, 161, 165 see also speech persuasion 18, 21, 38, 54–6, 60, 126: in law 50, 78–9; in poetry 80, 123 petition 21, 47, 52–4, 63, 148, 154 play 26, 36, 43, 122–3, 147, 167; playacting 13, 30, 56; playfulness 11, 41, 135 pluralism 5, 7, 10–11, 17, 19, 42; legal 90, 95; in speech 139, 142, 162 poetry 76, 79–84, 122–3, 136, 141–4, 147; Arendt on 73, 158, 160–5; at founding 21–2, 68–9, 71, 132–3; indirection in 152–3, 168–9; and law 77–9, 154, 171; in performative theory 13, 30, 32–3, 134 poet 56, 73, 82, 102, 160–3, 170;Arendt on 140, 143–4, 147, 158; as jurist 78–80 political theory 3, 41, 43, 100, 134–5, 152; methods of 16–20 populism 3–6, 105, 114, 116, 126, 158 power 2–3, 6–7, 26–8, 31, 56, 124; abuse of 48, 60; declaratory 52–3, 92, 158; disorderly 74, 102, 165; of language 62–4, 81–2, 141–3, 147, 161; legal 97, 99, 101–2, 115–16, 121; performative 14, 34–5, 40, 78; sovereign 77, 83 present (time) 54, 73, 84, 122–3, 133, 159–60; as gap 29–30, 131, 138–40, 148, 171; imperfections of 35–6, 40, 63, 78 print 9, 53, 146, 153, 163; and voice 47, 56–7, 61–3 process 6–9, 132, 139, 153, 159–60, 163–8; communicative 47, 52; disorders of 75, 156–7; founding 27, 37–41, 43–4, 67, 83, 136; independence as 90–3, 105, 111–16, 120–2, 124–6; of language 13–14, 25, 31–2, 35–6, 81 proclamation 73, 76, 92, 95–7, 113 Proclamation of the Irish Republic 21, 67–75, 77, 79–84, 143, 148; and disorder 154, 167 promise 26, 28, 34, 51, 60, 72 prophecy 37, 126, 132, 140; and law 78, 51–2, 60; poetic 21, 69, 73–5, 137, 154 protocol 52–4, 57–9, 61–4, 148, 154 public spirit 123–6, 132, 140, 145–6, 156, 163;American 56, 154 Quebec 20, 94, 96–9, 111–12, 157, 169; Secession Reference case 89–93, 102, 104–5, 170 questionability 40, 166–7

Index

rationalism 7, 55, 103, 136, 139, 143; irrationalism 28, 76, 81, 147; legal 101, 116 reason 28, 42, 55, 98, 158; legal 20, 96, 100–1 reception 21, 30–1, 72, 84, 114, 159 recognition 43, 47, 52, 95, 103; international 58, 69, 72, 91, 118, 167 referendum 39, 91–3, 98, 158, 167, 169–70; Scottish 20, 111–13, 115, 118–26, 132, 156 refusal 29, 64, 90, 97–9, 104, 106 renewal 17, 63, 81, 137, 159, 168; of authority 25, 70, 117, 170; conceptual 142, 144–5; constitutional 3, 8, 20, 97; political 1, 7, 60, 68, 120, 124 representation 39–43, 49, 59, 92, 131, 167; institutions of 69–70, 123; practices of 3–5, 7, 18, 31, 35–6, 79; problems of 12–16, 21, 54–6 resistance 36, 67–8, 74, 97–8, 140, 158 retroactivity 9, 27–8, 35, 62–4, 68, 132; in American Declaration 4, 82; and performativity 37–44, 54, 134, 153, 158–9, 169; and validation 21, 25, 164–5 revolution 7, 9–10, 27, 69–71, 113, 146;American 4, 52, 57, 76, 96; communication and 55, 61, 163; French 2, 19, 25; modern 125, 136, 139; spirit of 140, 165 riddle 4, 78, 133, 141–4, 152–3, 163; American Declaration as 21, 64;Arendt on 135–140, 147–8, 159, 165, 170–1 rights 47–53, 58, 91–3, 79, 111–15; minority 96–7, 155; sovereignty 70–1, 118, 124, 126 risk 5, 12, 39–40, 63, 78, 136; and independence 91, 115, 117, 119, 122–3; in language 30, 67, 125–6, 155, 163 Rome (ancient) 59–60, 114, 133, 144, 146, 164; founding of 16, 75 Rousseau, Jean-Jacques 42, 152 sacrifce 68, 70–2, 74–7, 79–81, 83–4, 153; ritual 144 Saturnalia 133, 143–7, 163 Schmitt, Carl 4–6, 37, 120 Scotland 20, 113–17, 125–7, 156–8, 169; referendum in 22, 118–24, 132 Searle, John 32–6, 43 secession 58, 116–19, 167–8, 170; in Canada 99, 101–4, 131, 148, 157; Quebec 20, 89–93, 112 self-mandating 27, 39–41, 44

179

self-suffciency 26–7, 39–40, 42–3 self-sustaining 37–9, 44, 59, 148 seriousness 143–5, 147, 152–4, 158, 162–4, 167–8; in language 21, 30, 33–5, 44, 67, 132–4; in law 63, 101–2; in poetry 79, 83, 160 Sieyès,Abbé 2–5, 12, 17, 25, 132, 164 signature 61–3, 145–6; Derrida on 4, 28, 30, 38, 41–2, 134; signatories 59–60, 69, 73–4, 76, 114, 154 silence 71, 74–5, 81, 114, 153, 159; and law 34–5, 90, 98, 100–2, 105; and referendums 117, 123; and voice 61–2 sincerity 61–2, 140, 162–3, 165–8, 171; in American Declaration 21, 47, 55–7; in language 30–1, 83, 125–6, 145–6, 152–4, 156 slavery 47, 49, 61, 144 sovereignty 75, 78, 83, 90–2, 103–4, 117; claim of 69–72, 112–14, 121, 126; and constituent power 1–3, 6–9, 16–17, 19, 131; and law 58, 95–7, 99, 133, 157–8, 165; myths of 21, 77, 154 speaker 37, 54–5, 67, 81, 143, 162–3; absent 61, 153–4 speech 1–2, 5, 16–20, 29–37, 41–4; legal 49, 52, 78, 102; performative 12–15, 26–7, 132–4, 152–5; poetic 68, 79–84, 158, 160–3; political 47–8, 61–4, 89–92, 104–5, 111–12, 126–7; in referendum 121, 124–5, 156; rhetorical 54–7 see also language spontaneity 4, 17, 61, 135, 142, 158 stability 25–6, 28, 51, 133, 144, 170–1; of history 78, 159; instability 30, 36, 39, 117, 164–5; and law 90, 93, 100, 102, 124–5, 131 story 76–7, 89, 98–100, 104; Indigenous 20, 90, 102–3, 164–5; storytelling 136–9, 147, 160–1, 163, 170 structure 1–3, 12, 14, 60, 75–6, 167–8; conventional 7, 26, 31, 102, 111, 162; legal 51, 95, 103, 148, 156–7; speech and 33–4, 52, 57, 133–4, 147, 158; of thought 18, 136, 141–2 subject 2, 13–15, 39–41, 83, 133–4, 163; of speech 25, 31, 35–7, 43, 153–4; subjectivity 21, 55, 62, 68, 77, 80 symbolism 9–10, 14, 22, 50, 114, 137; at founding 73, 154 theatre 10, 33, 56, 122, 125, 170 thought 92, 103, 135–6, 138–9, 141–3, 171; thinking 41, 57, 99–100, 124, 156, 161–3

180 Index

time 2–5, 7–9, 11–12, 39–41, 51, 73; concepts of 99, 135, 137–8, 142, 148, 159–60; and continuity 28–30, 37, 78, 105, 132–3; inversions of 43, 54, 63, 81, 104; moment in 15, 17, 48; and poetry 80, 143–4, 147 tradition 28, 140, 144, 161, 163, 171; constitutional 42, 53, 55, 68, 89–90, 126; Indigenous 20, 92, 95–6, 103; Irish 21, 71–4, 77–9, 154; political 51–2, 69, 125; Roman 114, 133, 146 treasure 125, 135–6, 139–40, 145, 165 Trickster 90, 106; tricksterism 102–3, 133, 146–7, 152, 156, 160–5 uncertainty 60–1, 63, 116–17, 119–21, 140–1; in language 13–14, 25–6, 57, 132, 148, 163–5 undecidability 28, 37–8, 40–1, 43, 82, 164 unilateralism 77, 90, 95, 116–17, 120, 157 United Kingdom 113, 118–23, 125, 157 univocality 7–8, 156 US 17, 28, 46, 62, 113; constitutionalism 2, 27, 37–8, 49–52, 55, 76

validity 28, 30, 34, 37–44; retroactive 21, 25–6, 132, 159; self-validation 133–4, 152, 164–5 Vattel, Emer de 58–9, 72 ventriloquism 10, 15, 21, 37–8, 57, 62 violence 4, 6, 26–7, 29, 34–5; and fatalism 84, 157; sacrifcial 74–7 Virgil 16, 74–5, 104, 137–8, 142, 163–4 voice 1–5, 8–9, 16–17, 20–2, 80, 159; democratic 91, 120, 131–2, 156–7; disembodied 37, 47, 60–4, 68, 78, 152–4; festive 145–8, 158, 163; natural 31, 55, 69, 162; and law 11–12, 59, 93, 100–1, 116–17, 133; popular 89, 105, 112–13, 126–7, 165–70; printed 56–7 Westminster 21, 111, 115, 118, 120, 156–7 will 13, 35, 120–1, 140, 148, 168; collective 10, 42, 91, 94, 101 writing 33, 54–5, 57, 62, 145, 153 Yeats, W.B. 81–2