A recent roundtable entitled “American Constitutional Collapse”, organized at Red May, and now archived here, with Aziz Rana, Camila Vergara, and Michael Hardt should confront us with the limit of political form today. All the interventions were able to shed light on distinct angles of the current collapse of the American constitutional order, which has only intensified since the beginning of the new current administration, although its sedimentation, as it is well known, has deep historical legal-political itineraries. However, here I just want to register the question that I posed to the panel, which is one not alien to some of the chapters of La fisura posthegemónica (2025), and that concerns the exhaustion of constituent power. There are many ways of posing this question, but in the tradition of American republicanism, the most clearcut of the problem is to take seriously the end of historical social majorities as vehicles for enacting a ‘constitutional moment’ of democratic reformation.
Some of us remember that towards the end of the third volume of We The People: The Civil Rights Revolution (2014), Bruce Ackerman claims that in our epoch we might very well be entering into the dusk of social movements. Ackerman’s book is from 2014, that is, a couple of years before the landmark victory of Donald J. Trump’s first electoral victory of 2016, and written in the wake of the decision of Shelby County v. Holder (2013), which abolished substantive parts of the Voting Rights Act of 1965. The sequence of the last decade has only validated Ackerman’s intuition about the effective collapse of movements as the driving force of American ius reformandi within the constitutional order (in other countries is no different, take Chile for instance, which we discussed two years ago at Red May, and that is also the story of the the ills of transformative constitutionalism).
However, to anyone that has paid any attention to the political turmoil in the United States in the last decade, it is completely clear that the paralysis of the constitutional system is far from being a state rigidity or stability, but rather it has shown itself to measure every social pressure through an equal force of legal force, testing the durability, probing the reach, and outsourcing the validity of implicit norms and guardrails within the tripartite structure of powers through an enacted process that some American legal theorists have called “liquidation”; that is, the adjudication of fixing and enforcing textural legal provisions in historical time. This means that what animates the internal process of American law is no longer that axiological conditions of political republicanism – representation and minimalist judicial review, separation of powers and state authority, congressional representation and autonomy of the legislation – but rather a stasis, that is both paralysis with respect to the the formal aspiration of classical social representation; and, at the same time, total legal mobilization, in which social majorities are oriented under the nexus of the administrative presidency that can take (it has taken) priority over institutional mediation and process – if anything should be learned in the last decade is precisely the effects of Moore v. Harper (2023) on the doctrine of the independent state legislature (in spite of its ruling at the Supreme Court); and, most recently, the legal showdown regarding process (or lack thereof) and the suspension of habeas corpus for migrants residents and illegal aliens, which according to an American Federal Judge, could prefigure as a potential invasion.
We have good reasons to assume that mobilization and social movements from below can no longer stand as the source of constitutional change. They must be taken at face value in order to avoid rhetorical platitudes: mainly, that any movement today is a vector in the ongoing stasis and decomposition, that ultimately animates (even if against its own intentions, as the progressives seems to ignore) the verisimilitude of state form in the age of stagnation. But this is not very different from the inchoate promises of the new right-wing populism that projects new historical heights of economic growth in epochal decline (and now the progressive programmatic calls for technocratic abundance coextensive to the administrative state).
It is perhaps in demobilization and a de-socialization derives where other horizons might soon emerge. If the modern epochality was defined by the energetic transfer of total social movements, our epoch of collapse will be shaped by that of non-movements outside political hegemony. There is no doubt that it brings paralysis and distress to the political thinker looking for historical reiterations. But then again, the anxiety for mimesis before a breakthrough is always dreadfully sharp.
Infrapolitical Reflections 