Cultural Instruments of Legitimacy in Constitutionalization: Constituent Power Through Ceremony, Ritual, and Symbol

This chapter develops a distinction between sovereignty and constituent power. It argues that when distinguished from constituent power, sovereignty appears not as a constitution-making force, but as the ability to create any legal content without being subject to the separation of powers. A sovereign, in this sense, is best understood as an individual or entity who enjoys an uncontrollable jurisdiction to transform its will into law. The exercise of constituent power, in contrast, only involves a constitution-making authority; it can only produce constitutional norms. Part I examines Jellinek’s conception of constituent power, which he developed in the context of his discussion of the theory of the organ. In his work, constituent power usually appears as an extra-legal force, inseparable from the notion of an omnipotent law-maker. Part II contrasts that conception with that of Carré de Malberg, who tried to avoid the risks of a constitution-maker attributed with the totality of political power by conceiving the nation as a sovereign entity that could only act and will through state organs who never enjoyed sovereign authority. Part III argues that it is in Schmitt’s work where the distinction between sovereignty and constituent power (between sovereignty and sovereign dictatorship) appears more clearly. Part IV considers examples of entities that, in the 20th and 21st centuries, have understood themselves as the means for the exercise of constituent power and have assumed sovereign authority. The emphasis will be on the Colombian Constituent Assembly of 1991 and in the Venezuelan Constituent Assembly of 2017.

This chapter traces the gradual emergence of the distinction between the constituted and the constituent power in the work of Sieyès, using Rousseau as the main source of comparison. It examines how Sieyès constructed constituent power as an extra-legal force and identifies the key juridical implications of his views. Part I briefly considers some uses of the term ‘constituent power’ before Sieyès and outside the context of the French Revolution. Part II examines Sieyès’ early pamphlets, where he puts forward his initial understanding of the power to be exercised by the nation’s representatives in the Estates-General. This approach, it will be seen in Part III, led him to propose the creation of a supreme constitution that ensured that the (representative) law-making power acted consistently with the general will. Part IV of the chapter focuses on Sieyès’ main published work, What is the Third Estate?, which contains a more developed formulation of the distinction between constituent and constituted power, as well as about the nature of representation. In that work, one can also see a transformation of Sieyès’ conception of the legislative power, one that brought him further than ever away from Rousseau. Finally, the chapter considers the role of extra-ordinary representatives in Sieyès’ conception of constitution-making and constitutional reform.

Public Administration and Constitutional Affairs Committee on the role of Parliament in the UK Constitution Inquiry

Modern thinking about democracy is largely governed by the concept of constituent power. Some versions of the concept of constituent power, however, remain haunted by the spectre of totalitarianism. In this article, I outline an alternative view of the identity of the people whose constituent power generates democratic authority. Broadly speaking, constituent power signifies the idea that all political authority, including that of the constitution, must find its source in some idea of ‘the people’, whose authority is never exhausted by constituted power. The deficiency I seek to address is that of asking who the people is to whom any claim of authority refers, while avoiding the pitfalls of totalitarianism. I show the most famous totalitarian view of constituent power – advanced by Carl Schmitt – to be not only politically unsavoury but also ontologically unjustified. To outline my alternative view, I draw on Jacques Derrida’s concept of just decisions to argue that the undecidable inaugurates collective responsibility by demanding a response. This suggests a view of ‘the people’ as a doing rather than a being. I conclude by showing how this avoids totalitarian views of popular sovereignty by demonstrating its congruency with Claude Lefort’s democratic theory as opposed to totalitarianism.

This comment takes issue with Mattias Kumm’s original and ambitious attempt to recast the concept of constituent power in thoroughly normative terms as a way of extending its significance from the national to the transnational domain. It argues that Kumm’s approach, by treating actually emergent patterns of transnational political consciousness as irrelevant to our understanding of the normative impetus of transnational constituent power, neglects constituent power’s modest but vital role in providing a base point of orientation in the development of collective forms of self-recognition and self-projection. It follows that Kumm’s thesis cannot satisfactorily account either for the motivational basis for transnational legal and political authority or for the appropriate division and interplay of jurisdiction between national and transnational constituencies. A better approach to questions of the relationship between state-centered legal and political authority and cosmopolitan justice would start from a firmer sense of the gap between the actual and the ideal, of the significance of that gap, and of the difficulties and possibilities attendant upon efforts to bridge that gap.

This chapter discusses Carl Schmitt’s theory of constituent power, focusing on its origins in interwar German political thought and its lasting influence on constitutional theory. Schmitt defined constituent power as the supreme political will capable of shaping a polity’s fundamental order, blending existentialist and nationalist elements. His distinction between sovereign and commissary dictatorship underpins his interpretation of constitutional authority, emphasizing the foundational nature of political decisions. Schmitt’s theory collapses constituent power into sovereignty, portraying mass democracy as a vehicle for dictatorial rule through popular acclamation. The chapter examines Schmitt’s engagement with Weimar constitutionalism, his radical critique of liberal democracy, and his justification of the Nazi seizure of power as a ‘constituent’ act. It also discusses Schmitt’s impact on debates over constitutional change, populist sovereignty, and supranational governance. Ultimately, the chapter situates Schmitt’s theory within broader discussions on the tensions between democracy, legality, and political authority.

Can the increasing involvement of external actors in domestic constitution-making be reconciled with the idea that constituent power belongs to the people subjected to the legal order it creates? Against the attempt to solve this tension pragmatically by distinguishing various degrees of ‘internationalized constituent power’, I argue that constituent power over domestic constitutions is, and cannot be, internationalized. I propose to recover the power-critical core of constituent power by understanding it as directed against unauthorized power, that is, against domination. This understanding shifts the key question away from the degree of influence as to whether external constitution-making is dominating. If external constitution-making is embedded in effective transnational institutions that prevent transnational domination, constituent power remains firmly in the hands of the constitution-making people who can authorize external involvement. If it is not, however, constituent power is not internationalized but rather usurped and effectively eclipsed—and the resulting domestic constitutional order unauthorized.

Making Law Possible

This article examines the changing status of constituent power in contemporary constitutionalism. It considers how, at face value, contemporary constitutional law reflects a post-constituent constitutional order, which is defined by a rupture with classical constitutional principles, such that the extra-legal source of constitutional order is diminished. However, it argues that the common perception of a decline in constituent power in constitutional norm construction is marked by an excessively literalistic understanding of the origins of constitutional norms and practices. As an alternative, drawing on systems-theoretical methodologies, the article proposes a functionalist, sociologically attuned reconstruction of the historical content of constitutional concepts, including the concept of constituent power. Through this perspective, it explains that constituent power, in conjunction with constitutional rights, always acted, not as an externally founding source of political agency, but as an inner projection of the political system, which served the internal organization of the political system as a distinct societal domain. The article concludes that the transnational constitutional models which are widespread in contemporary society, far from negating constituent power, re-articulate its primary functions, and they realize potentials for preserving the autonomy of the political system which constituent power always contained.

<i>Professing Selves: Transsexuality and Same-Sex Desire in Contemporary Iran</i>by Afsaneh Najmabadi

The article discusses the nature and role of constituent power in contemporary constitutional democracies. It presents the genesis of the concept of constituent power (phrased by Joseph Emmanuel Sieyès within the distinction between «pouvoir constituant» and «pouvoir constitué»), different approaches to this concept framed in the XXth century legal science by such thinkers as H. Kelsen and C. Schmitt, and finally the contemporary interpretations of this concept. The author indicates and analyses two major issues relevant to the nature and role of constituent power in the contemporary constitutional democracy. Firstly, he examines the thesis that the democratic constituent power’s activity remains normatively undetermined. The search for internal normativity that might characterise constituent power in democracy determines such practical constitutional issues as discretion of the legislator within the process of making or amending the constitution. Secondly, the author points out that analysis of the role of pouvoir constituant» in contemporary constitutionalism should not be limited to analysis of the „constitutional moment” only; the significance of constituent power should not be seen just in the framework of the one-off act of making the constitution. Constituent power should remain an active participant of constitutional discourse which induces a search for new principles ensuring balance between constituent and constituted power in constitutional democracies.

Similarly to historiography, war crimes trials, novels or movies, the press can be considered as a ‘vector’ of collective memory (Wood, 1999). Maurice Halbwachs (1992) sees collective memory as performative — that is, a reconstruction and an appropriation of the past used to meet or influence present needs. Accordingly, collective memory emerges at specific times and places often through institutionalised memorial activities such as special observances meant to mark an important social or historical event. The press, then, is one of the primary modes through which collective memory is transmitted across generations. The media, as agents of diffusion of social memory, can participate in the regulation of its strength and intensity in the public space. It is not only a primary means of revitalisation and enrichment of collective and individual memories but it can also be a potential source of frustration. Owing to their role as channels of memory and agents of information, the media play an important role in memory construction as collectors and transmitters of past and current events, and perhaps more importantly, the interpretation of those events. The diachronic analysis of state discourse and articles published in the Cameroonian state-affiliated and controlled newspapers enables one to apprehend the evolution of the historical and political representations of the radical nationalist party called the Union des Populations du Cameroun (UPC) and the political use of its past by the political authorities from 1960 onwards.

Marx and Critical Constitutional Theory

International law is quasi-constitutionalized, and there is a case to be made for further constitutionalization. But who should be in charge for making a global constitution? At the domestic level, the answer is the popular sovereign, namely the citizens understood as constitutional subjects who individually and collectively hold constituent power. We do not have an easy answer to the question of who holds constituent power at the global level. This article highlights some challenges for identifying the holders of constituent power in international law. The international community contains numerous authoritarian states. In the absence of reliable processes of representation of their citizens’ voice and interests, the inclusion of those states’ officials or representatives in negotiating the fundamental values and principles of a just global constitutional order raises special problems. We have reliable evidence that authoritarian states’ officials would undermine good faith negotiation of constitutional rules and principles, and even try to hijack the process for their own, narrowly self-interested ends. I will draw on the literature on constituent power to assess the limitations of a process by which the international community could articulate, activate, and exercise constituent power to negotiate and draft a morally defensible constitutional agreement.

Abstract:This article proposes an alternative to more standard, neoclassical theories concerned with the proceduralisation of constituent power. It argues that more established theories of proceduralisation are insufficiently aligned to the sociological realities in which constituent power is located and expressed, and their residual fixation on the premises of classical constitutionalism impedes adequate understanding of constituent power in the global constitutional order of contemporary society. On this basis, the article offers a sociological examination of constituent power, which attempts to grasp constituent power in its objectively existing procedural form. In particular, it claims that constituent power now exists as an inner-legal function, activated through procedures within an increasingly differentiated legal system: whereas in classical theory constituent power was a primary political source of constitutional norms, it now appears only as a secondary expression of norms already contained within the global legal system. Rather than renouncing the idea of constituent power, however, the article uses its sociological focus to observe new procedural openings for the activation of constituent agency, adapted to the material/sociological fabric of contemporary society.