Rejecting Constituent Power

Abstract

Abstract This chapter examines two related traditions of thought that reject the existence of an extra-legal constituent power or deprive it of one of its main features. The first of these traditions, the doctrine of the historical or internal constitution, presented a direct challenge to the theory of constituent power. In Spain, the main exponent of this doctrine during the 19th century was Gaspar Melchor de Jovellanos, who held that rather than the result of an act of will, constitutions emerged through long historical processes and could not be simply created and recreated. The second (and related) line of attack against the concept of constituent power during the 19th century came from the French and Spanish doctrinaires. The doctrinaires rejected the idea that the people (or any other individual or group) had a right to create new constitutional orders. For them, sovereign authority belonged to reason itself, not to the monarch or the community. The chapter examines the practical implications of these ideas by exploring the debates that took place during the adoption of the Spanish Constitution of 1845.