Abstract
AbstractConstituent power is a helpful component of constitutional theory because it provides a conceptual and potentially normative explanation of how a new constitution can be made without any existing legal authority to do so. Contemporary theories of constituent power, however, unhelpfully treat constituent power as a fictive entity, typically the people, that subsists through time. This predominant account of constituent power fails adequately to explain examples of constitution-making and also lends support to the populist claim that a unitary and unchanging people has an immanent but continuing role as a constitutional actor superior to the constitution itself. This enables populist leaders to rely on prevalent understandings of constitutionalism to support the sidestepping and/or removal of constraints on their power. In this Article, I trace the connections between mainstream theories of constituent power and the academically peripheral claims of populist constitutionalism. I argue for a different understanding of constituent power as a capacity that, in principle, may momentarily be exercised by any entity. This explains how a new constitution can unlawfully replace a pre-existing constitution yet come to have lawful authority itself, without implying the diachronic existence of the constituent power as an entity. I illustrate this understanding of constituent power with reference to the constitutional development of Taiwan and Ireland. These examples show—contrary to the predominant account of constituent power—that constitutional systems may be created without the exercise of constituent power and that constitutional law can play an important role in constructing an entity capable of exercising constituent power. Seen in this way, popular references in preambles are important not for their account of how a constitution was made but rather for their account of whom a constitution is for. This account of constituent power undermines core claims of populist constitutionalism. But it also provides a salutary lesson for liberal constitutionalists: a constitution adopted for a people must broadly serve the interests of that people.
Highlights
Many constitutions appear to invoke a unitary people in their preambles, recording the fact that they are made by and for a particular people. This reflects, or is reflected by, a prevalent constitutional theory that holds that the people is the constituent power, at all times subsisting the constitutional order
Constitutional rhetoric and mainstream constitutional theory both lend support to the populist claim that a unitary and unchanging people has an immanent but continuing role as a constitutional actor superior to the constitution itself. This enables populist leaders to rely on prevalent understandings of constitutionalism to support the sidestepping and/ or removal of constraints on their power. In this Article, I trace the connections between mainstream theories of constituent power and the academically peripheral claims of populist constitutionalism
Constituent power is a helpful component of constitutional theory because it provides a conceptual and potentially normative explanation of how a new constitution can be made without any existing legal authority to do so
Summary
During the French revolution, Emmanuel Joseph Sieyès invoked a distinction between constituent power and constituted power in order to justify the power of the “nation” over the king. Carl Schmitt subsequently generalized this distinction between constituent (or constitution-making) power and constituted power into a constitutional theory. Constituent power relates to the entity that creates the constitution, constituted powers are all those powers created by the constitution itself. Joel I Colon-Ríos advances a democratic theory of constitutionalism based on an analysis of constituent power.6 He argues that not just the ordinary workings of the constitution and its manner of creation and alteration should be democratic. He maintains that the constituent power of the people should be allowed to reemerge to challenge an existing constitutional order. He builds this argument on Schmitt’s theory of constituent power, describing constituent power as “par excellence a democratic concept.” He presents the following democratic account of constitution-making power: Constituent power : : : has an important connection with the democratic ideal. I shall explore its connections with populism
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