The American Tradition of Constituent Power

Abstract

How do “the people” exercise their “constituent power” to replace the current constitutional order? The conventional answer — drawing heavily on the American Founding period — is that the people act through specialized constitution-making bodies like constitutional conventions in an extralegal form of constitutional politics. Comparative experience, however, suggests self-dealing majorities can dominate these specialized constitution-making bodies, claim to represent the limitless constituent power of the people, and then unilaterally draft new constitutional law that entrenches their power or policies. This Article will recover the American tradition of constituent power — which is still present in the common law of the American states — that limits the powers of specialized constitution-making bodies. This tradition in turn minimizes a serious agency problem in constitutional replacement: It allows the people (the principal) to better control their representatives (agents) in extraordinary constitution-making bodies. A recovery of this American practice therefore represents an important step in helping revise the universal claim that courts should play no role in constitutional politics. It suggests that judicial review can — in certain contexts — play an important role in ensuring a fuller and more deliberate expression of constituent power in formal constitutional replacement.