Constituent Power: Reality, Integrity and Unamendability

Abstract

In constitutional democracies constituent power of people exists no more. This power becomes transmuted into what I call the core of constitutionalism. This argument is related to the recent practice of constitutional and supreme courts adjudicating upon the constitutionality of constitutional amendments. In my paper I will reconstruct this practice through a prism refracting the lights shone on the issue by Habermas’s discourse theory, Dworkin’s conception of dignity and Murphy’s conception of constitutional coherence. Without invoking natural law conceptions, the theory I am proposing explains the practice that courts engage in as well as entails certain normative repercussions we should take into account while thinking about the nature of constituent power, constitutional democracy and global constitutionalism. In the first part of the paper, having briefly explained the above-mentioned judicial practice, I attempt to determine how that practice can be translated into language of constitutional theory. To this end I will deploy Habermas’s reconstructionist approach and argue that, as reconstruction implies, constituent power of people becomes extinguished when a meaningful constitution is enacted – that is a constitution which makes a legitimate claim to authority. Such a legitimate constitutional authority requires that the norms establishing basic procedures, institutions and substantive rules that claim authority over someone must be reasonably justifiable to her as free and equal endowed with human dignity and reason. In short, the integrity of meaningful constitution is the reality of constituent power.In the second part of my paper I show how the core of constitutionalism should be operationalized. To that end I will use Habermas’ elaboration of discourse as a conceptual framework in which the two principles of dignity (that of intrinsic value of human being and of personal responsibility) and constitutional struggle for its coherence serve as “prongs in a test” one could apply to claims made within discourse. Those prongs translate certain normative presuppositions which must be applied to discourse in order for its participants to reach understanding. In virtue of the application of these normative presuppositions, discourse produces constitutional law(s) endowed with legitimate constitutional authority.