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This chapter considers the general question of the relationship between constituent power and constitutional form in the context of new or shifting non-state political configurations, and specifically in the case of the constitionalization of the European Union. It examines four hypotheses on the concept of a European constituent power: non-constituent constitutionalism, constitutional scepticism, constitutional vindication, and a post-constituent constitutionalism that, unlike the others, recognizes the initial absence of a supranational constituent power but insists upon both the value and the plausibility of its subsequent development. The chapter develops a position in defence of such a post-constituent constitutionalism — one that nurtures at least some ‘constituent’ qualities without undermining the continuing constituent authority of states.

This chapter addresses the question of the relationship between constitutionalism and the alternative political imaginaries of post-national formations, and offers a reconstruction of the idea of constituent power in the face of the diversification of political authority. Drawing on a case study of land reform in rural Brazil, it argues that although constituent power at the level of the nation state may have its dark side, it also retains an unparalleled potential for emancipation and for the energization of the political as an area of free and open contestation between different world-views.

This chapter considers the ways in which constituent power performed a role in the reconstruction of post-communist states of Central and Eastern Europe. It argues that the peculiarity of constitutionalism in this region lies precisely in the fact that in such well embedded political communities its traditional constitutive role is unnecessary, but that it nonetheless remains vital as way of allocating and checking power. Paradoxically, such a one-sided constitutionalism may face significant opposition from those embedded forces of community which make its constitutive role redundant.

This chapter begins by differentiating constituent power and constituted power. It then focuses on the assessment of the contribution made by the concept of constituent power to an understanding of public law. It notes that this is a complex task because constituent power resists simple absorption into juristic categories. It explains that the main reason for it is the fact that constituent power articulates the power of the multitude: constituent power is the juristic expression of the democratic impetus. It adds that the concept expresses the tensions between democracy and law. It clarifies that constituent power is the generative principle of modern constitutional arrangements. It provides juristic expression to those forces that constantly irritate the formal constitution, thus ensuring it is able to perform its political function. It outlines the emergence of democracy in modern political thought.

This chapter mounts a defence of a liberal constitutionalism in which constitutional architecture is treated as eclipsing constituent power, not on the basis of the empirical inevitability of the legal taming of the political, but on account of the impossibility of developing normative accounts of how we might live together except on the basis of such a working assumption. Against Schmitt's claim that constitutional authority cannot escape its origins in constituent power, the chapter defends a liberal account of the rule of law.

This introductory chapter presents the key issues to be examined in the book, in particular the tension between the claim that governmental power is generated from the ‘consent of the people’ and the claim that for such power to be effective, it must be divided, constrained, and exercised through distinctive institutional forms. It explains that the essays that follow are divided into three main sections. Part I considers the historical emergence of the idea of constituent power in modern European thought and practice. Part II examines a range of theoretical perspectives on the nature of the relationship. Part III evaluates the continuing importance and (possible) reconfiguration of this relationship in the light of a series of contemporary issues of a constitutional nature. An overview of the key themes developed in these essays is provided.

This chapter presents an irresolution thesis: that constituent power cannot be absorbed into constituted authority and is to be treated as irreducible supplement which irritates and challenges rather than transcends the specific forms of constituted power. It argues that the radical openness of constituent power depends on its occupying a domain radically independent of constitutional form, and that it is possible to imagine and activate such a domain as something other than the ante-room of constitutional initiative and authority.

This chapter addresses the challenge to state authority from the perspective of sub-state nationalism. It develops the argument in relation to such ‘plurinational’ states as Belgium, Canada, Spain, and the United Kingdom, and asks how sub-national movements might find constitutional voice, whether such voice is likely to affirm or compromise their ‘constituent’ autonomy, and, more generally, whether and in what circumstances the relationship between the constituent potential of sub-state and state demoi might be conceived in either zero-sum or positive-sum terms.

This chapter explicates the meaning of legal powers in terms of political authority, and then turns to the venerable French doctrine of pouvoir constituant. It claims that, ideally, political authority derives from the mutual realization that inasmuch as one lives communally, that is, together with others, one has to conceive of oneself from the perspective of all others and, indeed, as a stranger to oneself. Being a citizen, hence, involves self-relativization in the face of difference. Any justification of authority presupposes a conception of citizenship. The latter encompasses a normative perspective with regard to where self-relativization may legitimately come to an end and the types of processes necessary for citizens to live together despite their disagreements. The limits of constituted authority are established by the constituent power. The authority of the latter, in normative terms, can be drawn out by reconstructing the conception of citizenship that would make it legitimate.

This chapter focuses on the radical potential of contemporary constitutionalism, whereby constituent power is neither colonized by nor in symbiosis with the legal. This potential is illustrated in the work of Negri, in which it remains a latent revolutionary possibility which lies behind the legally constituted authority of the polity. It is argued that this radical potential need no longer be seen in terms of a revolutionary paradigm. Rather, under conditions of fragmented or multi-level authority in which the state is no longer the dominant level, constitutional form continues to structure but no longer determines political possibilities nor entirely controls the ways in which political movements approach and utilize legally constituted authority.

This chapter seeks to recover an alternative theory of sovereignty as constituent power that significantly departs from the canonical paradigm of command in order to investigate its democratic implications. The first section traces the beginnings of the concept, from the etymological meanings of the Latin verb “to constitute” to its initial medieval articulation that was set against the regal model. The second and third sections revisit formative episodes in the conceptual history of constituent power and consider its diverse but overlapping theoretical and political trajectories as they coalesced around the political ideas of disobedience, resistance, and revolution. The final section attempts to reconstruct the discursive rules and immanent principles that organize the intelligibility of the concept over time and consider the challenges they pose to inherited (mis)understandings of democracy.

This chapter introduces the topic of the book. It provides some initial examples of the roles constituent power has played in justifying or limiting political action. It also examines the two main ways in which constituent power has been understood by constitutional theorists: as an extra-legal constitution-making force that always escapes constitutionalization (i.e. original constituent power), and as a substantively unlimited constitution-making authority (i.e. derived constituent power) that can be expressed through a constitution’s amendment rule. It then summarizes the content of each of the subsequent chapters.

This chapter develops a distinction between sovereignty and constituent power. It argues that when distinguished from constituent power, sovereignty appears not as a constitution-making force, but as the ability to create any legal content without being subject to the separation of powers. A sovereign, in this sense, is best understood as an individual or entity who enjoys an uncontrollable jurisdiction to transform its will into law. The exercise of constituent power, in contrast, only involves a constitution-making authority; it can only produce constitutional norms. Part I examines Jellinek’s conception of constituent power, which he developed in the context of his discussion of the theory of the organ. In his work, constituent power usually appears as an extra-legal force, inseparable from the notion of an omnipotent law-maker. Part II contrasts that conception with that of Carré de Malberg, who tried to avoid the risks of a constitution-maker attributed with the totality of political power by conceiving the nation as a sovereign entity that could only act and will through state organs who never enjoyed sovereign authority. Part III argues that it is in Schmitt’s work where the distinction between sovereignty and constituent power (between sovereignty and sovereign dictatorship) appears more clearly. Part IV considers examples of entities that, in the 20th and 21st centuries, have understood themselves as the means for the exercise of constituent power and have assumed sovereign authority. The emphasis will be on the Colombian Constituent Assembly of 1991 and in the Venezuelan Constituent Assembly of 2017.

This chapter argues that to the extent that a constituent assembly is not a sovereignty entity but a means for the exercise of constituent power, it can be subject to substantive limits arising from a constituent mandate. Part I of the chapter examines the place of the imperative mandate in contemporary constitutional change. Part II analyses the extent to which ‘the people’, understood as a juridical entity, could be said to engage in constituent action through an electoral exercise. It examines whether, during an episode of constitutional change, the electorate necessarily acts as a state organ (a view exemplified in the work of a number of constitutional theories as well as in some judicial decisions). In answering that question in the negative, the chapter develops a distinction between constitutional and constituent referendums. Part III explores the process that led to the convocation of the Venezuelan Constituent Assembly of 1999. In that process, the court recognized the electorate’s right to convene an extraordinary constitution-making body through a referendum that took place outside of the established amendment rule. However, the constituent mandate contained in the referendum’s question was transgressed by the assembly, which assumed sovereign authority. The courts, relying on the theory of constituent power, later sanctioned that transgression.

This thesis shows that the dialectic of constituent and constituted power only ever leads to forms of sovereignty. Every negation of constituted power only ever leads to the re-emergence of sovereignty—or, what I call “the ruse of sovereignty.” Instead, it is more constructive to note the contrast between democracy and sovereignty implicit in a particular understanding of constituent power.

This chapter explores the way in which several authors understood the relationship between the material constitution and constituent power, and how that understanding affected their views about the legal limits of the ordinary power of constitutional reform. Part I begins with a brief examination of the historical development of the distinction between the amending and the constituent power. Part II examines the place of the concept of super-legality in Hauriou’s work. For this author, constitutional super-legality includes not only the content of a written constitution protected by a special rule of change, but also the fundamental principles that stand above the constitution itself. Part III introduces Kelsen’s conception of the material constitution which, unlike Hauriou’s, is entirely consistent with the notion of an unlimited amendment power, one which cannot ultimately be bound by eternity clauses and much less by implicit principles. In Part IV, this ‘descriptive’ approach will be contrasted with that of Schmitt. Somewhat counter-intuitively, under Schmitt’s approach, the frequent appeal to an unlimited and unmediated constituent subject leads to the attribution of limited competences to the amending authority. Part V shows how Heller’s conception of the material constitution, although at first sight appearing as a successful synthesis of Kelsen and Schmitt, provides no clear basis for justifying the protection of the material constitution through the legal appeal to an extra-legal constituent authority. Finally, the chapter examines Mortati’s views about the material constitution’s potential role in justifying the imposition of legally enforceable limits on the amending authority.

Rather than repudiating the proposition that the people is the bearer of constituent power, Chapter 4 moves beyond it in five ways: (1) by recuperating a commonsensical understanding of the moment of its exercise; (2) by redeeming the neglected dimensions of the concept of constituent power; (3) by distinguishing between two visions of ‘constituting’: constituting as founding, and constituting as taking part in ‘making-with stand’; (4) by reimagining constituent power as the configuration of three, more specific, types of constitutive powers: the enterprising enthusiasm, the forming force, and the capacity for responsiveness; and finally by (5) by raising the profile of the figures of hope and purpose: two intimately related forward-looking expectant mental states that give power to constitutive power.