Parties and Constituent Power (Forthcoming in Oxford Handbook of Constituent Power, eds. Lucia Rubinelli, Markus Patberg, and Peter Niesen. Oxford: Oxford University Press) (original) (raw)
Related papers
Constituent power and its institutions
Contemporary Political Theory, 2021
At least since the French Revolution, the idea of constituent power has been used to indicate the power the people have to create legal-political orders. As such, the history of constituent power is deeply tied to the principle of popular power and, through it, to the history of democracy, to its theory and to its practice. Not only does constituent power point to the process through which a democratic polity is instituted via procedures of constitution-making. It also acts as a reminder that the source of constitutional normativity lies in the will of the people. As a result,
This chapter questions scholarly portrayals of the nature of constituent power and their ability to capture revolutionary experiences in Egypt and Tunisia. The debate presupposes a distinction between constituent power and constitutional form that is neither theoretically compelling nor practically illuminating. This is because constituent power is neither unbounded nor exhaustible in constitutions. In order to explicate this argument, Section I of this chapter critically examines theories of constituent power that conceptualize its relation to preexisting institutions. It argues that both the crude negation at the root of populist theories and the presumed dialectical synthesis at the root of constitutionalist approaches are unpersuasive. Moreover, the debate concerning constituent power’s alleged arbitrariness merely blurs the distinction between constituent power and constituted power. Sections II and III examine the relationship between revolution and constitutionalism. Section II argues, in contrast to constitutionalists, that constituent power is inexhaustible because the revolution is not reducible to an event and thus constitution-making fails to terminate constituent power. Section III argues, in contrast to populists, that constituent power is not unfettered because the judiciary imposes constitutional continuity through unwritten constitutional principles, notwithstanding the revolutionary overthrow of the constitution. Against this backdrop, Sections IV and V zero in on Egyptian and Tunisian judicial rulings and legal debates that relate to the formation and functioning of constituent assemblies. The reason for the focus on constituent assemblies is that these assemblies are supposed to embody constituent power in the process of enacting the constitution. Scholars such as Sieyès argue that constituent assemblies are a surrogate for the nation-in-revolt and its originary power to constitute the polity. Thus, these assemblies are supposed to be as unfettered as the nation. Contrary to this portrayal, constituent assemblies face three primary challenges. First, they operate against the backdrop of judicial enforcement of pre-existing constitutional norms. They thus ensure constitutional continuity despite revolutionary rupture, and impose normative limitations on political decision-making during revolutionary processes. The second challenge is that unlike scholars such as Sieyès, who theoretically argue for the separation between legislative and constitutive functions, in reality revolutionary assemblies often perform both functions. They thereby combine features of constituent and constituted powers. The third challenge is that of de-politicization (or the politics of consensus, non-partisanship, and experts). Contrary to the celebration of the political agency embedded in constituent power (e.g., Schmitt, Böckenförde, and Negri), “anti-political” currents persist during the revolutionary process. They contest the political nature of consistent power and impose practical limits on the work of constituent assemblies.
Ernst-Wolfgang Böckenförde and the Politics of Constituent Power
Jurisprudence, 2018
This paper offers a critique of Ernst-Wolfgang Boeckenfoerde's theory of constituent power. It is argued that any theory of constituent power that appeals to a Schmittian notion of political community must fail to explain the legitimacy of a democratic constitution.
COMPARATIVE CONSTITUTIONAL THEORY (Gary J. Jacobsohn and Miguel Schor eds., Edward Elger, forthcoming 2017)
Constituent power is generally recognized as the power of ‘the people’ to establish a constitutional order. Regarded as external and prior to the constitutional order, it is often distinguished from constituted powers. The circularity of constituent power is that ‘the people’, the constitutional author, is itself constituted by the constitution. Thus, notwithstanding its immense importance, constituent power remains one of the most intangible concepts in constitutional theory. This Chapter presents and contrasts various theoretical conceptions of constituent power, mainly of its legal or illegal nature; of its holders; and of its direct or representational manifestation. It demonstrates how comparative constitutional design aims to bridge between a mythical conception of ‘the people’ and the real population by providing popular mechanisms for exercising constitutive functions. Due to its importance and complexities, it is argued that the concept of constituent power must not be abandoned but further studied and conceptualized
On the Limits of Elitist Theories of Constituent Power
Ethics & Politics, 2021
Review of Joel Colón-Ríos' book Constituent Power and the Law (2021) In times of crisis it is necessary to revisit the theorization of radical change and the mechanisms through which it can be realized in a peaceful and orderly manner. Joel Colón-Ríos's Constituent Power and the Law is a timely book that promotes our understanding of the concept of constituent power as well as of its juridical application. Despite its contributions, in this critical review I claim that, because the book is thought through an elitist democratic theory framework that presupposes the unitary nation-state, it excludes the republican theory tradition that is premised on the socioontological division between the powerful few and the many, and that conceives the periodic exercise of constituent power by the people as necessary to keep a republic uncorrupted. In addition, I take issue with Colón-Ríos’s interpretation of Rousseau as a supporter of the direct exercise of foundational constituent power by the people in (silent) primary assemblies, and the resulting reduction of the people’s exercise of constituent power to mere authorization and ratification—to the detriment of processes involving popular deliberative decisionmaking that lead to a mandate. Finally, I critically engage with his conceptualization of the ‘material constitution,’ arguing that the definition he applies is too broad to be useful. Including formal and substantive ordering rules and principles as part of the strictly material interpretation of the constitution, which emerges from power relations, conceals the specific contributions that the material framework brings to the study of constitutions and the law.
Is it time to abandon the theory of constituent power? A rejoinder
International Journal of Constitutional Law (ICON), 2023
This essay is a rejoinder to the responses made by (1) Lior Barskack, (2) Nicholas Aroney, Erin Delaney, Stephen Tierney, (3) Christine Bell, (4) Ana Micaela Alterio, (5) Graziella Romeo, and (6) Emilios Christodoulidis. The responses and rejoinder will be published in ICON's "afterword" section.
Constituent Power(s) in a Dualistic Democracy
Revus, 2020
I engage with Andrew Arato’s theory of constituent power explicated in The Adventures of Constituent Power and bring together two ideas introduced in the book – post-sovereign constituent power and dualistic democracy. I suggest that the combination of these two ideas allows us to extend the application of Arato’s theory. I contrast Arato’s ‘dualistic democracy’ with Bruce Ackerman’s well-known idea of dualist democracy in order to establish the differences of the two models and to criticize Arato for applying his theory of constituent power only to exceptional moments of constitution-making. I then develop the idea of the empty place of constituent power, unwrapping Claude Lefort’s influence over Arato’s theory. By introducing Lefort’s framework, I show how an understanding of dualistic democracy beyond Ackerman can allow to think of non-exceptional post-sovereign constituent power.
Constituent Process and Constituent Power
Verfassungsblog
Chile's constituent process is well underway. Last month, on 16 and 17 May 2021, the election for the 155 members of the Constitutional Convention, the organ responsible for drafting a new constitution, was held. Since then, however, the rules that govern the constituent process have become contested. 34 of the elected members of the Convention issued a declaration on 8 June 2021, claiming that the constituent organ has sovereign character and is not bound by the current constitutional order which came into force under Pinochet's dictatorship. Such claims, I believe, are typical for operationalizations of the notion of 'constituent power'. Yet, in contrast to their goal-a strict realization of popular sovereignty-I argue that those claims can achieve the opposite of what they are promising, leading to a closure of political space for the people. They should therefore be rejected.