At the Origins of Constitutional Review: Sieyès’ Constitutional Jury and the Taming of Constituent Power
Posted: 14 Sep 2011 Last revised: 12 Jun 2015
Date Written: September 14, 2011
Even though he is mainly known for his concept of constituent power, Sieyès has also been one of the first constitutional theorists to propose an institution very similar to a constitutional court as a guardian for the constitution. This paper reconstructs the main tenets of his proposal, puts them in the larger context of his constitutional theory, and then assesses its institutional nature and its constitutional functions. The end result is mixed: as an organ, the constitutional jury is a hybrid institution, neither a third chamber nor a full-fledged constitutional court; its functions, on the other side, concern not only the control of constitutionality, but also the taming of constituent power. By cumulating several functions in one institution, Sieyès hoped to solve both the problem of the tension between constituent power and constitutional form and the issue of how to secure a balanced organization of powers.
Keywords: Sieyes, Constitutional Jury, Constitutional Review, Constituent Power, Hierarchy of Norms, Organization of Powers
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