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1 - Rousseau’s Sovereignty and the Concept of Constitutional Identity

from Part I - Foundations, Theory, and Concepts

Published online by Cambridge University Press:  14 March 2024

By
Howard Schweber
Edited by
Ran Hirschl  and
Yaniv Roznai
Ran Hirschl
Affiliation:
University of Toronto
Yaniv Roznai
Affiliation:
Reichman University, Israel
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Summary

Gary Jacobsohn’s theory of constitutional identity speaks to normative questions about the exercise of constituent power in constitution making. To gain purchase on these questions, this article applies Rousseau’s description of three "moments" of citizenship to the creation and maintenance of constitutional orders. Jacobsohn’s understanding of constitutional identity as something that emerges over time as opposed to an episodic expression enriches the Rousseauian model’s response to the paradoxes of democracy. Ultimately, Jacobsohn’s model implies that true constituent power is exercised only in the form of a dialogue within a shared understanding of democratic legitimacy, raising the possibility that moments of violent disruptive constitutional change cannot be accommodated to the requirements of democratic legitimacy at all – a return to Rousseau’s paradox of founding.

Keywords

constitutional identityconstituent powerdemocracyparadoxfoundingRousseaudemocracylegitimacytime
Type
Chapter
Information
Deciphering the Genome of Constitutionalism
The Foundations and Future of Constitutional Identity
 , pp. 23 - 33
Publisher: Cambridge University Press
Print publication year: 2024

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