Five Conceptions of Constituent Power
Joel I. Colón-Ríos, “Five Conceptions of Constituent Power”, 130 Law Quarterly Review 306-336 (2014)
40 Pages Posted: 2 Sep 2013 Last revised: 26 Sep 2017
Date Written: September 1, 2013
In his history of 18th century North American constitutions, Willi Paul Adams maintained that the Oxford English Dictionary is “quite wrong” when it asserts that the term “constituent power”, defined as “the power to frame or alter a (political) constitution”, originated during the French Revolution. At one level, Professor Adams is undoubtedly correct that the dictionary entry is inaccurate. The term “constituent power”, as he noted, was used in 18th century North America where, as early as in 1777, Thomas Young insisted that the people of Vermont were “the supreme constituent power”, not to be confused with the “supreme delegate power” of the legislature. However, contrary to what Professor Adams and others have suggested, it is not in North America where the first formulations of constituent power occurred. In fact, the very term “constituent power” was deployed by English jurists and commentators well before the French and American revolutions and has since then played different but related roles in the development of English public law (as well as in the development of public law in different constitutional traditions).
For example, in 18th century Great Britain, there was talk of “constituent powers” in the plural, to refer to the entire citizenry as a body superior to the ordinary legislative assembly. This is the case of a letter published in 1770, where “Junius” argued that the House of Commons had the duty of interpreting the will of the people and conveying it to the Crown, and if that interpretation was false or misleading, “the constituent powers are called upon to deliver their own sentiments”. The voice of the constituent powers, he said, was “rude, but intelligible; their gestures fierce, but full of explanation”. Despite the existence of these and even earlier uses of the term in English, there is a sense in which the accuracy of the entry of the OED cannot be disputed. It was during the French Revolution where a radical conception of the people’s exclusive constitution-making faculty, their sovereignty over the constitutional regime, was for the first time identified with the term constituent power. However, as this article will show, the French is not the only conception of constituent power that has played (or that plays) an influential role in modern and contemporary constitutional theory.
By unearthing the different historical uses and meanings attributed to constituent power, this article aims to improve our grasp of a concept that, while having its roots in a somewhat remote constitutional past, is increasingly present in contemporary constitutional theory. As will be seen, the term constituent power has been deployed in five major forms (each of which is connected to the others in interesting ways) since the 17th century: (1) to refer to the power of a sovereign parliament; (2) to refer to the constitution-making power of the Crown or the Imperial Parliament in relation to the colonies; (3) to refer to the right of the electors to instruct their representatives; (4) to refer to the power of resisting oppressive governments and replacing them with new ones; (5) and to refer to the ultimate constitution-making power of the people. This exploration into the origins and development of constituent power aims not only at challenging some long held assumptions in constitutional theory, but at increasing our understanding of contemporary questions about parliamentary sovereignty, common law constitutionalism, and the limits of constitutional change.
Keywords: constituent power, parliamentary sovereignty, common law constitutionalism, unconstitutional constitutional amendments, popular sovereignty, Imperial Parliament, colonial constitutions, right to instruct representatives, right of resistance, constituent authority, sovereignty
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