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
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.
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