Constitutional revolutions and the constituent power: A rejoinder to Jan Komárek

Abstract

Responding to Jan Komarek’s “Constitutional Revolutions and the Constituent Power: A Reply to Mark Tushnet” I argue that positing that constitutions “recognize” rights from some external source presents the problem, addressed in the theory of the right of revolution, that constitutions might “recognize” the wrong set of rights, and in particular might recognize as rights principles that should not so qualify. In a related argument, I contend that exercises of the right of revolution need not be only to protect the constitution, but can occur against a government that is faithfully complying with a defective constitution.