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5 - The Death of Constituent Power

from Part I - Foundations, Theory, and Concepts

Published online by Cambridge University Press:  14 March 2024

By
Victor Ferreres Comella
Edited by
Ran Hirschl  and
Yaniv Roznai
Ran Hirschl
Affiliation:
University of Toronto
Yaniv Roznai
Affiliation:
Reichman University, Israel
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Summary

Constitutional theory in democratic countries has traditionally postulated the existence of a sovereign people endowed with the authority to enact a constitution. An influential view going back to Sieyès claims that the constituent power of the people is legally unlimited. The ability of the people to enact a constitution is supposed to be fully disconnected from positive law. This notion, however, is seriously flawed. The idea that a legally omnipotent people, working its will at the constitutional stage, is the fountain of positive law makes no sense. Although the idea can be used rhetorically in some justificatory contexts to support valuable institutional arrangements, it also raises a number of pragmatic concerns. All things considered, our theoretical and political discussions would be more fruitful if we certified the death of that concept.

Keywords

The distinction between constituent power and constituted powersConstitutional amendmentsEmmanuel SieyèsFederalist PapersNatural and positive lawLiberalism and democracyFundamental rights and separation of powersPolitical theology
Type
Chapter
Information
Deciphering the Genome of Constitutionalism
The Foundations and Future of Constitutional Identity
 , pp. 63 - 75
Publisher: Cambridge University Press
Print publication year: 2024

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