Constituent Power and Constitutional Change in American Constitutionalism

2006 ◽  
Author(s):  
Stephen M. Griffin
Keyword(s):  
Constitutional Change ◽  
Constituent Power

Destituent Power

2020 ◽  
pp. 123-138
Author(s):  
Markus Patberg
Keyword(s):  
Civil Disobedience ◽  
Popular Sovereignty ◽  
The Political ◽  
Constitutional Change ◽  
Constituent Power ◽  
Public Authorities ◽  
Protest Movements ◽  
The Public ◽  
The Right ◽  
The Eu

This chapter takes up the public narrative of ‘We, the multitude of Europe’, which suggests that the only hope for progressive change in the EU lies in a politics of disruption, and asks whether this idea can be defended based on a systematic model. To that end, it resorts to the political theory of destituent power, according to which opposition to or withdrawal from public authority can function as a legitimate trigger for constitutional change. Distinguishing between anti-juridical and juridical conceptions of destituent power, the chapter discusses to what extent the disruptive political strategies put forward by protest movements in the EU can be regarded as justifiable. Focusing on the juridical strand as the more plausible one, it argues that ideas of destituent power as ‘state civil disobedience’ run into a problem of authorization. By contrast, popular sovereignty-based approaches illuminate a neglected dimension of constituent power: the right to dismantle public authorities without the intention to create new ones. While such a model of destituent power in part captures the actions and demands of EU protest movements, it can only complement, not replace, the constructive side of constituent power.

Extraordinary Partisanship

2020 ◽  
pp. 179-196
Author(s):  
Markus Patberg
Keyword(s):  
Alternative Model ◽  
Constitutional Change ◽  
Rational Reconstruction ◽  
Constituent Power ◽  
Process Of Change ◽  
Parliamentary Elections ◽  
Political Agent ◽  
Opening Up ◽  
Endogenous Process ◽  
The Eu

This chapter addresses the question of what kind of a political agent could bring about a supranational separation of constituent and constituted powers in the EU. Given that an endogenous process of change seems unlikely, it asks which exogenous forces could trigger the establishment of a higher-level constituent power. In particular, the chapter engages with the idea that transnational partisanship could function as a vehicle for constituent power in the EU. It argues that the model of networked constituent power, according to which cross-border deliberation between members of like-minded parties should initiate and guide intergovernmental treaty making at the EU level, is unconvincing because it relies on establishes parties, which must be regarded as quasi-constituted powers. By means of a rational reconstruction of the Democracy in Europe Movement 2025, the chapter then develops an alternative model of extraordinary partisanship. An extraordinary partisan association ‘co-opts’ regular parliamentary elections to acquire a mandate for a project of constitutional change. Such an organization could enable citizens from various member states to promote an opening up of the EU polity for the exercise of constituent power.

A republican defence of the constitutional referendum

Legal Studies ◽  
2015 ◽  
Vol 35 (1) ◽  
pp. 30-54 ◽  
Author(s):  
Eoin Daly
Keyword(s):  
Direct Democracy ◽  
Popular Sovereignty ◽  
Executive Power ◽  
The Political ◽  
Constitutional Change ◽  
Parliamentary Democracy ◽  
Constituent Power ◽  
Parliamentary Supremacy ◽  
Political Value ◽  
Republican Theory

The constitutional referendum is often conceptualised as the ultimate institutional expression of popular sovereignty. However, ‘direct democracy’ is viewed apprehensively by many political and legal theorists, particularly republican scholars. They argue that referendums risk engendering a dangerous ‘populism’ while detracting from the deliberative and moderating virtues of parliamentary democracy. In this paper, I defend the political value of the constitutional referendum from within republican theory, arguing that there is a misplaced focus on parliamentary supremacy within much of the literature on ‘political constitutionalism’. However, I argue it should be valued neither as a mechanism for giving expression to popular will, nor as an intervention by the mythologised ‘constituent power’ – or indeed, contra Tierney, as a ‘sovereign’ exercise in any sense. Rather, it has two main, overlapping virtues: first, its role in facilitating the contestation and checking of executive power in the area of constitutional change, and secondly, its instrumental role in fostering a wider culture of civic participation.

The Universal Model

2020 ◽  
pp. 141-208
Author(s):  
Ngoc Son Bui
Keyword(s):  
Human Rights ◽  
The Other ◽  
Previous Experience ◽  
Constitutional Change ◽  
Universal Model ◽  
Constituent Power ◽  
Limited Power ◽  
Global Norms ◽  
Constitution Making

This chapter investigates the making of Vietnam’s 2013 Constitution. Compared with previous experience in Vietnam and with the experience in the other four socialist countries, the 2013 experience features the local adherence to universal norms in the process and substance of socialist constitutional change. This model of socialist constitutional change is, therefore, characterized as the universal model. The adherence to these universal norms informs and legitimatizes the process of the constitution-making. But, the global norms are contextualized by their intricate interaction with socialist, local elements: the party’s reformist program, legislature’s constituent power, party’s control of participation, and the party’s control of international involvement. Procedurally, the interplay of global and socialist factors results in a more open national constitutional dialogue and a less authoritarian paradigm of constitutional imposition. The three aspects of dissonance (internal to the socialist constitution of Vietnam, between the socialist constitutional ideals and external Vietnamese reality, and between the socialist and global constitutional norms) result in the pragmatic incorporation of universal ideas, principles, and institutions into the socialist Constitution of Vietnam, e.g. people’s constituent power, limited power, and human rights.

scholarly journals Destituent power in the European Union: On the limits of a negativistic logic of constitutional politics

2018 ◽  
Vol 15 (1) ◽  
pp. 82-99 ◽  
Author(s):  
Markus Patberg
Keyword(s):  
European Union ◽  
Popular Sovereignty ◽  
Constitutional Change ◽  
Euro Crisis ◽  
The European Union ◽  
Constituent Power ◽  
Constitutional Politics ◽  
Protest Movements ◽  
Progressive Reforms ◽  
The Right

Since the euro crisis, protest movements present the European Union as a neoliberal hegemony that undermines democracy and prevents progressive reforms. They call for acts of resistance and partial disintegration to force a renegotiation of the treaties. In this article, I ask whether these ‘disruptive’ political strategies can be defended as a democratic practice of constitutional politics. To that end, I turn to the notion of destituent power, according to which opposition to or withdrawal from public authority can function as a legitimate trigger for constitutional change. I systematise the emerging debate on destituent power and discuss the plausibility of competing approaches. I argue that destituent power is best understood as grounded in popular sovereignty. It denotes the right to dismantle constitutional orders without the intention to construct new ones. While this idea supports some of the acts of contestation proposed by European protest movements, it faces a lure towards the jurisgenerative dimension of constituent power. Ultimately, the potential of a purely negativistic logic of constitutional politics is limited.

The Juridical People

2020 ◽  
pp. 262-294
Author(s):  
Joel Colón-Ríos
Keyword(s):  
Constitutional Change ◽  
Constituent Power ◽  
Judicial Decisions ◽  
Constituent Assembly ◽  
The People ◽  
Sovereign Authority ◽  
Amendment Rule ◽  
Constitution Making

This chapter argues that to the extent that a constituent assembly is not a sovereignty entity but a means for the exercise of constituent power, it can be subject to substantive limits arising from a constituent mandate. Part I of the chapter examines the place of the imperative mandate in contemporary constitutional change. Part II analyses the extent to which ‘the people’, understood as a juridical entity, could be said to engage in constituent action through an electoral exercise. It examines whether, during an episode of constitutional change, the electorate necessarily acts as a state organ (a view exemplified in the work of a number of constitutional theories as well as in some judicial decisions). In answering that question in the negative, the chapter develops a distinction between constitutional and constituent referendums. Part III explores the process that led to the convocation of the Venezuelan Constituent Assembly of 1999. In that process, the court recognized the electorate’s right to convene an extraordinary constitution-making body through a referendum that took place outside of the established amendment rule. However, the constituent mandate contained in the referendum’s question was transgressed by the assembly, which assumed sovereign authority. The courts, relying on the theory of constituent power, later sanctioned that transgression.

Between Law and Revolution

2020 ◽  
pp. 77-100
Author(s):  
Joel Colón-Ríos
Keyword(s):  
French Revolution ◽  
18Th Century ◽  
Constitutional Reform ◽  
Constitutional Change ◽  
Constituent Power ◽  
Late 18Th Century ◽  
Power Part ◽  
The Relationship ◽  
The French Revolution

Although the origins of the theory of constituent power are generally placed in the French Revolution, the different legal and institutional implications associated with it in late 18th-century France are seldom explored. This chapter engages in such an exploration by focusing on two institutions that were rejected by Sieyès: the imperative mandate and (decision-making) primary assemblies. Part I focuses on Sieyès’ proposals about constitution-making and constitutional reform after 1789. Part II of the chapter examines the role of citizen instructions in late 18th-century France. Sieyès saw citizen instructions as radically inconsistent with the very idea of representation; they were abolished very early in the Revolution. In so doing, it will be shown, French revolutionaries altered in fundamental ways not only the relationship between electors and representatives, but the very nature of what counts as an exercise of constituent power. Part III focuses on the role of primary assemblies during the more radical stages of the French Revolution (namely, 1792–1793). The approach to primary assemblies found in both in the Constitution of 1793, as well as in the Girondin Draft Constitution, reflected in important ways Rousseau’s conception of those entities as a key mechanism of democratic constitutional change. This approach to constitutional change will be contrasted with that of Sieyès, who saw primary assemblies as the site for the exercise of the much more modest ‘commissioning power’, the power to elect those seen as capable of identifying the nation’s constituent will.

The Transformative Potential of Constituent Power: A Revised Approach to the New Latin American Constitutionalism

2018 ◽  
Vol 46 (6) ◽  
pp. 73-91
Author(s):  
Carys Hughes
Keyword(s):  
Latin American ◽  
The State ◽  
Constitutional Theory ◽  
Constitutional Change ◽  
Democratic Deficit ◽  
Constituent Power ◽  
Transformative Potential ◽  
State Actors

The processes of constitutional change and resultant constitutional models initiated in Venezuela, Bolivia, and Ecuador since the late 1990s have been celebrated for offering a democratic form of constitutionalism. The new Latin American constitutionalism promises to resolve the democratic deficit in traditional constitutional theory by institutionalizing spaces for citizen-led constitutional change. However, events in which actors outside the state or without the wider support of the state have attempted to initiate similar processes of constitutional transformation suggest a problem with current theories. This is a residual bias toward state actors and a tendency to underestimate the power of extrainstitutional actors in these processes. By reconceiving the central concepts of “constituent power” and “constitutional process,” an account of the new Latin American constitutionalism is possible that both resolves remaining tensions in the literature and illustrates the relevance of this phenomenon to struggles across the continent. Los procesos de cambio constitucional y los modelos constitucionales resultantes iniciados en Venezuela, Bolivia y Ecuador desde fines de la década de 1990 se han celebrado por ofrecer una forma democrática de constitucionalismo. El nuevo constitucionalismo latinoamericano promete resolver el déficit democrático en la teoría constitucional tradicional mediante la institucionalización de espacios para el cambio constitucional liderado por los ciudadanos. Sin embargo, eventos en los cuales actores fuera del estado o sin el apoyo más amplio del estado han intentado iniciar procesos similares de transformación constitucional sugieren un problema con las teorías actuales. Este es un sesgo residual hacia los actores estatales y una tendencia a subestimar el poder de los actores extrainstitucionales en estos procesos. Al reconcebir los conceptos centrales del “poder constituyente” y el “proceso constitucional,” es posible hacer un recuento del nuevo constitucionalismo latinoamericano que resuelve las tensiones restantes en la literatura y demuestra la relevancia de este fenómeno para luchas en todo el continente.

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