Is it Time to Abandon the Theory of Constituent Power?

70 Pages Posted: 24 Jul 2022 Last revised: 9 Mar 2023

Date Written: July 13, 2022

Abstract

A group of scholars has shown that the theory of constituent power—which seeks to describe and justify the dismantling of the constitutional order and its replacement for a new constitution—is flawed. The analytical tools of the theory fail to explain how constitution-making processes occur, and it has been subject to normative challenges that question its democratic nature. However, the theory remains a mainstream idea in many countries, and some academics have attempted to defend its democratic nature. I claim that those attempts have rendered the theory meaningless or failed to correct all of its problems. I then raise two objections. First, the constituent power theory cannot be used to justify most—if any—constitution-making processes without an excessive idealization of the founding moment, but we are yet to understand the actual costs of that idealization. Second, redeemers of the theory need to decide on whether the constitution-making process can operate under reasonably well electoral and democratic conditions or not. Ideal conditions are improbable when a crisis pushes for constitutional change. In the unlikely case that these conditions can be met, using an idea of constitutional change as radical as the constituent power theory is not warranted from a normative perspective. I call this conundrum the dilemma of the constituent power redemption.

Keywords: Constituent power, constitution making

Suggested Citation

Verdugo, Sergio, Is it Time to Abandon the Theory of Constituent Power? (July 13, 2022). Available at SSRN: https://ssrn.com/abstract=4162160 or http://dx.doi.org/10.2139/ssrn.4162160

Sergio Verdugo (Contact Author)

IE University - IE Law School ( email )

Madrid
Spain

HOME PAGE: http://https://www.ie.edu/law-school/

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