The American Tradition of Constituent Power

15 International Journal of Constitutional Law 955-987 (2018)

71 Pages Posted: 17 Dec 2014 Last revised: 4 May 2020

Date Written: December 16, 2014

Abstract

How do “the people” exercise their revolutionary right to replace the existing constitutional order? The conventional answer is that the people act through specially elected constitution-making bodies like constitutional conventions. But what powers must these specially elected institutions — as the representatives of the people — wield? Must they possess the inherent power to, for instance, unilaterally change the ratification requirements? Or, even if they must submit their drafts to a popular referendum, must they have inherent power to pass laws or displace existing government prior to a referendum?

These questions have recently re-emerged in constitutional transformations around the world. Constitution-making bodies with broad inherent legal powers — justified as necessary for revolutionary expressions of the popular voice — have allowed strong partisan factions to use constitution-making to consolidate power. Some scholars — citing recent practice — have argued that we should abandon the revolutionary tradition altogether. A recovery of American debates about the powers of constitution-making bodies, however, shows that these runaway bodies are not necessary to a revolutionary expression of constituent power. On the contrary, the American approach to constituent power presents strong reasons why a revolutionary exercise of constituent power requires an elected constitution-making body to have limited powers.

Keywords: constituent power, constitution-making theory, American constitutional tradition, comparative law, representation, constitutional politics.

Suggested Citation

Partlett, William, The American Tradition of Constituent Power (December 16, 2014). 15 International Journal of Constitutional Law 955-987 (2018) , Available at SSRN: https://ssrn.com/abstract=2538970 or http://dx.doi.org/10.2139/ssrn.2538970

William Partlett (Contact Author)

Melbourne Law School ( email )

185 Pelham St
Carlton VIC
Melbourne
Australia
+61 3 8344 8740 (Phone)

HOME PAGE: http://law.unimelb.edu.au/about/staff/william-partlett

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