Constituent power, cosmopolitan constitutionalism, and post-positivist law

Abstract

In the modern constitutionalist tradition, the concept of constituent power imagined to be held by “We the People” is widely held to be foundational for the legitimate authority of constitutions. There is, however, a jurisprudentially questionable structural nationalist/statist as well as voluntarist/positivist character in the way that “We the People” as constituent power is predominantly conceptualized in the modern tradition. I will contrast this modern understanding with a different, revised understanding of constituent power as an integral part of a revised understanding of constitutionalism. That revised understanding is both cosmopolitan and post-positivist, even if sovereign states and positive law remain central to it. In this revised account constituent power is vested co-equally in “We the People” and in “the international community.” Furthermore, constituent power is not foundational and uncircumscribed, but grounded in, constrained, and guided by the idea of a community of free and equal persons governing itself through the medium of the law as part of an international community. The idea of a community of free and equal persons governing itself within the framework of the state as part of an international community is prior to and gives meaning to the idea of constituent power.