The Legitimacy of the Juridical: Constituent Power, Democracy, and the Limits of Constitutional Reform

Abstract

What conditions must be met for a constitutional regime to be considered legitimate from a democratic perspective? This article argues that the democratic legitimacy of a constitutional regime depends on its susceptibility to (democratic) re-constitution. Under this view, a constitution must provide an opening, a means of egress for constituent power to manifest from time to time. In developing this argument, the article advances a distinction between ordinary constitutional reform - understood as subject to certain limits- and the exercise of constituent power through which a society produces novel juridical forms without being subject to positive law. The article concludes by providing examples of mechanisms that may be used as means for the exercise of constituent power and that, if available, would provide a constitutional regime with a strong claim to democratic legitimacy.

Keywords: Constitutional Reform, Unconstitutional Constitutional Amendments, Constituent Power, Democracy, Democratic Legitimacy, Constitutionalism, Carl Schmitt, Popular Participation, Constituent Assembly, Constitutional Change