Ernst-Wolfgang Böckenförde and the Politics of Constituent Power (original) (raw)
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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.
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,