‘We the People’, ‘Oui, the People’ and the Collective Body: Perceptions of Constituent Power
Comparative Constitutional Theory (Gary J. Jacobsohn and Miguel Schor eds., Edward Elgar, 2017, Forthcoming)
26 Pages Posted: 3 May 2017 Last revised: 5 Jun 2017
Date Written: April 30, 2017
Constituent power is generally recognized as the power of ‘the people’ to establish a constitutional order. Regarded as external and prior to the constitutional order, it is often distinguished from constituted powers. The circularity of constituent power is that ‘the people’, the constitutional author, is itself constituted by the constitution. Thus, notwithstanding its immense importance, constituent power remains one of the most intangible concepts in constitutional theory. This Chapter presents and contrasts various theoretical conceptions of constituent power, mainly of its legal or illegal nature; of its holders; and of its direct or representational manifestation. It demonstrates how comparative constitutional design aims to bridge between a mythical conception of ‘the people’ and the real population by providing popular mechanisms for exercising constitutive functions. Due to its importance and complexities, it is argued that the concept of constituent power must not be abandoned but further studied and conceptualized.
Keywords: constituent power, constituted power, constitution-making, amendment power, popular sovereignty, revolution, representation, direct democracy
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