Idea Of Constituent Power Research Articles

Sieyès’s idea of constituent power: a moderate and illiberal idea of sovereignty in the French revolution

ABSTRACT Moderation and liberalism are different and in some cases antagonistic concepts. In recent years, the view that Sieyès’s idea of constituent power is a moderate and liberal rendering of sovereignty has gained acceptance in intellectual history and constitutional theory literature. This claim is based on the premise that radical and illiberal readers of Rousseau’s idea of sovereignty, such as Robespierre and the Jacobins, were opposed to representing the general will (volonté générale). Thus, constituent power as the exercise of power by extraordinary representatives to draft a constitution would be a liberal attempt at political moderation in the French revolution. In contrast to this liberal reading, my analysis shows that Sieyès’s idea of constituent power is an illiberal attempt at political moderation. Against moderate liberal theories, constituent power demands that the extraordinary representatives of the constituent assembly must will, deliberate, and act as if they were the people themselves. These representatives have absolute powers and the mandate to create a constitution but also the imperative to perceive and mirror the sovereign will. From a political theory approach, I conclude that constituent power is not a liberal idea but a key notion of moderate illiberalism that prevailed during the French Revolution.

Parliamentary sovereignty and the locus of constituent power in the United Kingdom

Abstract This article argues that parliamentary sovereignty’s assimilation of constituent power—the ultimate power in a legal order to create and posit a constitution—has stultified the development of British constitutional law. The result is a deeply ideological, as distinct from oft-heralded pragmatic, constitutional structure that is incapable of confronting the systemic challenges the United Kingdom currently faces. By conceptualizing a more antagonistic relation between the Crown in Parliament and “the people” by questioning the democratic credentials of the former, this article contends that the UK constitutional order can be reinvigorated. This reappraisal, however, also requires the interrogation of the notion of “the people” in the UK constitutional order itself. Thus, despite what appear to be substantial constitutional reforms in recent decades, parliamentary sovereignty’s inviolability is stultifying deeper constitutional reform. The result is a constitutional law in “crisis” in search of a paradigmatic revolution. A descriptive—as distinct from normative—account of constituent power is then introduced paving the way for a distinction to be drawn between the possessor of constituent power in a constitutional order and “the people.” Constituent power in the context of the UK is then discussed, arguing that parliamentary sovereignty incorporates much of what the idea of constituent power does. However, this does not mean that constituent power is vested in “the people”; rather, the locus of constituent power in the United Kingdom should be more forcefully critiqued from a democratic perspective. By acknowledging this distinction, the sacrosanctity of parliamentary sovereignty can be broached and more effective constitutional reform can follow by embracing this tension between Parliament and “the people.”

Reframing political space. Pro-European mobilisation and the enactment of european citizenship

ABSTRACT This article asks how pro-European activism relates to the idea of European citizenship. Its ambition is to evaluate recent mobilisations in light of an activist understanding of citizenship and relate them to a broader dynamic of reframing political space. Despite its ambivalent founding in market integration, EU citizenship as a legal status has a political potential which has hardly been sufficiently discussed. Exploring the performative as well as polity-constituting dimension of enactments of European citizenship, the article elaborates on the role of narratives and imaginaries of democratic founding that are the basis for political mobilisation. Reflecting on recent attempts to transfer the idea of constituent power to a transnational setting, it suggests a reinterpretation which incorporates the inherent paradoxical dimension of enactment and representation. ‘Constitutive moments’ are sequences of rupture rather than single events, creating narratives of shared past and future, which reach out to construct new commonalities.

Constituent power in a “community of equals”

In this article, I use an ideal example related to what I call “a community of equals” to explore the difficult problems involved in the idea of constituent power. After presenting my version of this “egalitarian community,” I discuss some theoretical controversies that have emerged around the same matter, focusing on the work of Bruce Ackerman, Joel Colon-Rios, Yaniv Roznai, and more particularly, Andrew Arato. I argue that discussions about constituent power should neither remain confined within the old paradigm of “sovereign constitution-making,” nor become exclusively studied under the alternative paradigm of “post-sovereign constitution-making.” Constitutionalism needs to recover its democratic character if it wants to keep its egalitarian promise intact.

Democratizing the Doctrine of Unconstitutional Constitutional Amendments: The Puzzle of Amending the Judiciary Branch

Abstract The increasing interest of legal academia on the doctrine of Unconstitutional Constitutional Amendments and its growing enforcement by the judiciary in different jurisdictions has started to normalize a doctrine that was considered controversial and extraordinary. This paper seeks to cast some doubts on the use of this doctrine, especially when the Court that enforces it is the subject of the amendment itself. In the first section it will question the conceptual foundations of the doctrine by recourse to legal theory, focusing not only on the idea of constituent power, but also on those of the rule of law and accountability. In the second section, some comparative cases of unconstitutional constitutional amendments will be analyzed, focusing on those where the judiciary itself was the subject of the amendment. Finally, from a normative and conceptual standpoint, a dialogic approach to the application of the doctrine will be proposed, to mitigate the fact that Constitutional Courts can become an unaccountable accountability-holder.

Democratizing the Doctrine of Unconstitutional Constitutional Amendments: The Puzzle of Amending the Judiciary Branch

Abstract The increasing interest of legal academia on the doctrine of Unconstitutional Constitutional Amendments and its growing enforcement by the judiciary in different jurisdictions has started to normalize a doctrine that was considered controversial and extraordinary. This paper seeks to cast some doubts on the use of this doctrine, especially when the Court that enforces it is the subject of the amendment itself. In the first section it will question the conceptual foundations of the doctrine by recourse to legal theory, focusing not only on the idea of constituent power, but also on those of the rule of law and accountability. In the second section, some comparative cases of unconstitutional constitutional amendments will be analyzed, focusing on those where the judiciary itself was the subject of the amendment. Finally, from a normative and conceptual standpoint, a dialogic approach to the application of the doctrine will be proposed, to mitigate the fact that Constitutional Courts can become an unaccountable accountability-holder.

Parliamentary Sovereignty and the Locus of Constituent Power in the United Kingdom

This paper argues that parliamentary sovereignty’s assimilation of constituent power — the ultimate power in a legal order to create and posit a constitution — has stultified the development of British constitutional law. The result is a deeply ideological, as distinct from oft-heralded pragmatic, constitutional structure that is incapable of confronting the systemic challenges the UK currently faces. By conceptualising a more antagonistic relation between the Crown in Parliament and ‘the People’ by questioning the democratic credentials of the former, this paper contends that the UK constitutional order can be re-invigorated. This re-appraisal, however, also requires the interrogation of the notion of ‘the People’ in the UK constitutional order itself. Part I argues that despite what appear to be substantial constitutional reforms in recent decades, parliamentary sovereignty’s inviolability is stultifying deeper constitutional reform. The result is a constitutional law in ‘crisis’ in search of a paradigmatic revolution. A descriptive — as distinct from normative — account of constituent power is then introduced paving the way for a distinction to be drawn between the possessor of constituent power in a constitutional order and ‘the people’. Constituent power in the context of the UK is then discussed, arguing that parliamentary sovereignty incorporates much what the idea of constituent power does. However, this does not mean that constituent power is vested in ‘the people’; rather, the locus of constituent power in the UK should be more forcefully critiqued from a democratic perspective. By acknowledging this distinction, the sacrosanctity of parliamentary sovereignty can be broached and more effective constitutional reform can follow by embracing this tension between Parliament and ‘the People’.

Discursive Constituent Power and European Integration

It is high time the “return of the political” in Western liberal societies began to be recognized in all its facets, especially as regards the inherently conflictual nature of constitutional claims. Looking at the constituent power is therefore all the more important nowadays. The idea of constituent power has always been controversial. Yet, despite its highly contested nature, the intensification of the process of constitutionalisation in the second part of the 20th century has contributed to its resurgence, at least in its popular version. Renewed attempts to derive the authority of a system of government from the decision taken by the constituent power (in particular, the people) acquire a peculiar significance in light of the wave of populism across the European Union (EU). Once again, we are faced with crucial questions, as regards the process of European integration. Is there a constituent power in the EU? And, if so, does it come from the people? From Bodin’s idea of sovereignty as “the highest power of command”, the final instance of coercion, to Paine and Sieyes’ notion of sovereignty as the power to found, to constitute, multiple approaches can be adopted. These approaches tend to convey the image of an unconstrained and undivided force, either in its repressive attitude or in its creative assertiveness. However, they seem increasingly unsuitable for the current conceptual landscape of transnational integration. This difficulty is confirmed by recent efforts to locate the constituent power in the international community, which may also, at best, be doubted. This paper seeks to unravel a different scenario, one in which a form of discursive constituent power emerges from the interstitial tissue of the EU. Subjectivity and crisis are thus strictly connected with each other. From this angle, all ambiguities and contradictions of the EU liberal project may be laid open. In particular, the paper follows a discourse theoretical line of research and adopts as its starting point a dual conception of “The People”: 1) as “mobile people”, i.e. a construction of people as moving from one place to another of the EU territory and 2) as “peoples” in the plural, i.e. a construction of “demoi” that is supposed to underpin the process of development of the EU as a polity. It will be shown that, in both configurations, the security and fundamental rights discourses as discourses of power are much more relevant than may seem. Fundamental rights are protected only to the extent their recognition is instrumental to ensuring the primacy, uniformity and effectiveness of EU law.

The global legal system and the procedural construction of constituent power

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.

Constituent Power and Legitimate Constitutional Authority

We have been warned, by no one less than Plato: unless political power and philosophy are conjoined, the polis nor humanity itself will be free from trouble.1 In my dissertation, I seek to provide an argument of how this warning could be heeded in the modern polis, i.e. the state. Through reconstruction of the practices of constitutional courts in liberal democracies with regard to unconstitutional amendments, my dissertation embodies what one could call an encompassing normative theory, which clarifies what I call the core of constitutionalism. Dignity is arguably the key concept within this theory, and provides an explanation for, and also a justification of today’s practices of constitutional courts judging particular amendments to be unconstitutional. The account I provide rethinks the idea of constituent power which, I argue, is inherently circumscribed, and sets forth a number of criteria on the basis of which judges can reasonably come to these judgments.

How to think beyond sovereignty: On Sieyes and constituent power

Historians and political theorists have long been interested in how the principle of people’s power was conceptualised during the French Revolution. Traditionally, two diverging accounts emerge, one of national and the other of popular sovereignty, the former associated with moderate monarchist deputies, including the Abbé Sieyes, and the latter with the Jacobins. This paper argues against this binary interpretation of the political thought of the French Revolution, in favour of a third account of people’s power, Sieyes’ idea of pouvoir constituant. Traditionally, constituent power has been viewed as a variation of sovereignty, but I show it to be an independent conceptualisation of people’s power. Sieyes’ political theory led him to criticise and refuse contemporary theories of sovereignty in favour of what he understood as a fully modern account of people’s power. Based on extensive research in the archives, I show how Sieyes opposed the deployment of sovereignty by the revolutionary Assemblies and recommended replacing it with the idea of constituent power.

Constitutional identity, unconstitutional amendments and the idea of constituent power: The development of the doctrine of constitutional identity in German constitutional law

The article examines how the concept of constitutional identity has evolved in German constitutional history since 1871, the year of entry into force of the first Germany-wide constitution. This article outlines the theoretical ideas and historical constellations framing the evolution of the notion of constitutional identity, and helps demystify the legal concept. It shows that during the period governed by the Constitution of the German Reich of 1871, the concept of constitutional identity was, in principle, unknown. It was only during the period of the Weimar Constitution, that the notion of constitutional identity was introduced. In 1928, the notion was used by the anti-democratic constitutional lawyers, Carl Schmitt and Carl Bilfinger, within their different theories of justifying the implicit (constitutional) limits on amendments to the Weimar Constitution. In the course of the drafting of the German Basic Law, there was no reference to the notion of constitutional identity. It was only after the German Basic Law had come into force that the notion (re-)emerged. It was used in some aspects of the legal doctrine in order to interpret article 79(3) of the German Basic Law in the light of the ideas of Carl Schmitt. More recently, it was adopted by the German Constitutional Court in order to justify constitutional limits on European integration. The article ends with an assessment of the development of the German concept of constitutional identity. For this purpose, the German doctrine is contrasted with French constitutional law.

Pouvoir Constituant and Pouvoir Irritant in the Postnational Order

Constituent power is a key concept of the modern constitutional tradition, yet it encounters serious difficulties when transposed into today’s globalized world. Its radical promise, connected with the ‘ability to make a new beginning’, sits uneasily with a social and political context that seems out of reach and impossible to ‘constitute’. Yet the idea of constituent power continues to animate people in their efforts to reclaim agency and self-government in a landscape shaped largely by others. This paper traces key challenges to the continuing force of constituent power in the postnational order and argues that, because of adverse institutional and societal conditions, this order is better understood as post-constituent: ascribing its origin to a pouvoir constituant would, under any plausible conception, stretch the notion too far. If at all, the idea of constituent power survives on a normative plane, potentially feeding a pouvoir irritant of global institutions with a precarious, often technocratic legitimacy basis.