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5 - The Death of Constituent Power

from Part I - Foundations, Theory, and Concepts

Published online by Cambridge University Press:  14 March 2024

By
Victor Ferreres Comella
Edited by
Ran Hirschl  and
Yaniv Roznai
Ran Hirschl
Affiliation:
University of Toronto
Yaniv Roznai
Affiliation:
Reichman University, Israel
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Summary

Constitutional theory in democratic countries has traditionally postulated the existence of a sovereign people endowed with the authority to enact a constitution. An influential view going back to Sieyès claims that the constituent power of the people is legally unlimited. The ability of the people to enact a constitution is supposed to be fully disconnected from positive law. This notion, however, is seriously flawed. The idea that a legally omnipotent people, working its will at the constitutional stage, is the fountain of positive law makes no sense. Although the idea can be used rhetorically in some justificatory contexts to support valuable institutional arrangements, it also raises a number of pragmatic concerns. All things considered, our theoretical and political discussions would be more fruitful if we certified the death of that concept.

Keywords

The distinction between constituent power and constituted powersConstitutional amendmentsEmmanuel SieyèsFederalist PapersNatural and positive lawLiberalism and democracyFundamental rights and separation of powersPolitical theology
Type
Chapter
Information
Deciphering the Genome of Constitutionalism
The Foundations and Future of Constitutional Identity
 , pp. 63 - 75
Publisher: Cambridge University Press
Print publication year: 2024

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References

Ackerman, Bruce. 1991. We the People: Foundations. Cambridge: Harvard University Press.Google Scholar
Albert, Richard. 2019. Constitutional Amendments: Making, Breaking, and Changing Constitutions. Oxford: Oxford University Press.CrossRefGoogle Scholar
Arato, Andrew. 2016. Post Sovereign Constitution Making: Learning and Legitimacy. Oxford: Oxford University Press.CrossRefGoogle Scholar
Barak, Aharon. 2015. Human Dignity: The Constitutional Value and the Constitutional Right. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Bredin, Jean-Denis. 1988. Sieyès: La clé de la Révolution française. Paris: Éditions de Fallois.Google Scholar
Carré de Malberg, Raymond. 2004. Contribution à la Théorie Générale de l’État. Paris: Dalloz.Google Scholar
Colón-Ríos, Joel. 2020. Constituent Power and the Law. Oxford: Oxford University Press.CrossRefGoogle Scholar
Ferreres Comella, Victor. 2009. Constitutional Courts and Democratic Values: A European Perspective. New Haven: Yale University Press.CrossRefGoogle Scholar
Hamilton, Alexander, Jay, John, and Madison, James. 2000. The Federalist. New York: The Modern Library.Google Scholar
Hart, H.L.A. 1961. The Concept of Law. Oxford: Oxford University Press.Google Scholar
Herzog, Don. 2020. Sovereignty, RIP. New Haven: Yale University Press.Google Scholar
Jacobsohn, Gary Jeffrey. 2010. Constitutional Identity. Cambridge: Harvard University Press.Google Scholar
Jacobsohn, Gary Jeffrey, and Roznai, Yaniv. 2020. Constitutional Revolution. New Haven: Yale University Press.Google Scholar
Levinson, Sanford. 2015. An Argument Open to All: Reading the Federalist in the 21st 111 Century. New Haven: Yale University Press.Google Scholar
Rawls, John. 1971. A Theory of Justice. Cambridge: Harvard University Press.CrossRefGoogle Scholar
Rousseau, Jean-Jacques. 1968. The Social Contract. London: Penguin.Google Scholar
Roznai, Yaniv. 2017. Unconstitutional Constitutional Amendments: The Limits of Amendment Powers. Oxford: Oxford University Press.Google Scholar
Roznai, Yaniv. 2021. “The Boundaries of Constituent Authority.” Connecticut Law Review 53 (5): 1381–1408.Google Scholar
Schmitt, Carl. 2005. Political Theology: Four Chapters on the Concept of Sovereignty. Chicago: The University of Chicago Press.CrossRefGoogle Scholar
Sieyès. 2003. Political Writings. Indianapolis/Cambridge: Hackett Publishing Company.Google Scholar
Verdugo, Sergio. 2023. “Is It Time to Abandon the Theory of Constituent Power?” I.CON, International Journal of Constitutional Law 21 (1): 14–79.CrossRefGoogle Scholar
Waldron, Jeremy. 1999. Law and Disagreement. Oxford: Oxford University Press.CrossRefGoogle Scholar

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