The Material Constitution

This chapter explores the way in which several authors understood the relationship between the material constitution and constituent power, and how that understanding affected their views about the legal limits of the ordinary power of constitutional reform. Part I begins with a brief examination of the historical development of the distinction between the amending and the constituent power. Part II examines the place of the concept of super-legality in Hauriou’s work. For this author, constitutional super-legality includes not only the content of a written constitution protected by a special rule of change, but also the fundamental principles that stand above the constitution itself. Part III introduces Kelsen’s conception of the material constitution which, unlike Hauriou’s, is entirely consistent with the notion of an unlimited amendment power, one which cannot ultimately be bound by eternity clauses and much less by implicit principles. In Part IV, this ‘descriptive’ approach will be contrasted with that of Schmitt. Somewhat counter-intuitively, under Schmitt’s approach, the frequent appeal to an unlimited and unmediated constituent subject leads to the attribution of limited competences to the amending authority. Part V shows how Heller’s conception of the material constitution, although at first sight appearing as a successful synthesis of Kelsen and Schmitt, provides no clear basis for justifying the protection of the material constitution through the legal appeal to an extra-legal constituent authority. Finally, the chapter examines Mortati’s views about the material constitution’s potential role in justifying the imposition of legally enforceable limits on the amending authority.

Conclusion

This concluding chapter summarizes the main insights of the book, which present constituent power as an eminently juridical concept, one that can play a key role in determinations of legal validity and that places important demands on constitutional orders. It also identifies avenues for further research, particularly with respect to the imperative mandate, primary assemblies, the doctrine of unconstitutional constitutional amendments, the legality of informal but democratic constitution-making processes, and the enforceability of constituent mandates. The chapter concludes by arguing that to approach constituent power through legal lenses does not necessarily entail an attempt to domesticate an otherwise revolutionary concept. In the case of this book, such an approach seeks to realize part of the radical democratic potential of the concept: that, as in Rousseau, it is the sovereign people, and not its representatives, who must determine the content of the fundamental laws.

Back to Rousseau

This chapter provides an overview of what should be understood as one of the most sophisticated analyses of the distinction between constituent and constituted authority, that of Rousseau. It engages in a close reading of Rousseau’s work and considers the ways in which it anticipated and served as the basis for Sieyès’ famous theory. Rousseau has not generally been seen as a theorist of constituent power. This is probably a result of his apparent support of direct democracy: in a direct democracy, there is no separation between the government and the governed and, therefore, no separation between the constituted powers and the constituent subject. But Rousseau, the chapter shows, clearly rejected direct democracy as a form of government: he only insisted in the direct intervention of the citizenry for the ratification of the ‘laws’. The problem with most contemporary interpretations of Rousseau is that they attribute to his use of the term ‘law’ the same meaning that that term has today: an ordinary statute adopted by a representative body. But Rousseau used the term ‘law’ to refer to the fundamental norms of the legal system, norms that only an assembly of the entire people or a multiplicity of primary assemblies, the constituent subject, could legitimately adopt. The chapter also considers the practical implications of Rousseau’s approach, such as primary assemblies with the authority to issue legally binding instructions.

Introduction

This chapter introduces the topic of the book. It provides some initial examples of the roles constituent power has played in justifying or limiting political action. It also examines the two main ways in which constituent power has been understood by constitutional theorists: as an extra-legal constitution-making force that always escapes constitutionalization (i.e. original constituent power), and as a substantively unlimited constitution-making authority (i.e. derived constituent power) that can be expressed through a constitution’s amendment rule. It then summarizes the content of each of the subsequent chapters.

Sovereignty and Dictatorship

This chapter develops a distinction between sovereignty and constituent power. It argues that when distinguished from constituent power, sovereignty appears not as a constitution-making force, but as the ability to create any legal content without being subject to the separation of powers. A sovereign, in this sense, is best understood as an individual or entity who enjoys an uncontrollable jurisdiction to transform its will into law. The exercise of constituent power, in contrast, only involves a constitution-making authority; it can only produce constitutional norms. Part I examines Jellinek’s conception of constituent power, which he developed in the context of his discussion of the theory of the organ. In his work, constituent power usually appears as an extra-legal force, inseparable from the notion of an omnipotent law-maker. Part II contrasts that conception with that of Carré de Malberg, who tried to avoid the risks of a constitution-maker attributed with the totality of political power by conceiving the nation as a sovereign entity that could only act and will through state organs who never enjoyed sovereign authority. Part III argues that it is in Schmitt’s work where the distinction between sovereignty and constituent power (between sovereignty and sovereign dictatorship) appears more clearly. Part IV considers examples of entities that, in the 20th and 21st centuries, have understood themselves as the means for the exercise of constituent power and have assumed sovereign authority. The emphasis will be on the Colombian Constituent Assembly of 1991 and in the Venezuelan Constituent Assembly of 2017.

Of Constituent Nations

This chapter examines the ways in which the debates about the nature and implications of the theory of constituent power that arose during the French Revolution reappeared in later constituent episodes. It pays particular attention to the electoral rules regulating citizen activity and to the types of constitutional forms that resulted from them. In Part I, the chapter explores the distinction between the constituent power of the people and the constituent power of the nation. From each of these notions, emanate different types of legal and institutional demands on the juridical order. After distinguishing between these two approaches, the chapter examines, in Part II, the ways in which they were (or not) put into practice in the constitution-making process that resulted in the creation of the Spanish Constitution of 1812. Part III focuses on the creation of the Venezuelan Constitution of 1811 and Part IV examines the process that led to the adoption of the Colombian Constitution of 1886. During these three processes, constituent power became an extraordinary constitution-making jurisdiction directed at the identification of the common good, and as a power that could be exercised through mechanisms that excluded important parts of the population.

Rejecting Constituent Power

This chapter examines two related traditions of thought that reject the existence of an extra-legal constituent power or deprive it of one of its main features. The first of these traditions, the doctrine of the historical or internal constitution, presented a direct challenge to the theory of constituent power. In Spain, the main exponent of this doctrine during the 19th century was Gaspar Melchor de Jovellanos, who held that rather than the result of an act of will, constitutions emerged through long historical processes and could not be simply created and recreated. The second (and related) line of attack against the concept of constituent power during the 19th century came from the French and Spanish doctrinaires. The doctrinaires rejected the idea that the people (or any other individual or group) had a right to create new constitutional orders. For them, sovereign authority belonged to reason itself, not to the monarch or the community. The chapter examines the practical implications of these ideas by exploring the debates that took place during the adoption of the Spanish Constitution of 1845.

The Juridical People

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.

The Identity and Limits of the Constituent Subject

This chapter considers the legal and institutional implications that different 19th-century authors derived from the theory on constituent power and that, in many cases, were reflected in actual constitutional practice. Part I briefly examines the general historical context in which the works discussed in the chapter were written. Part II considers the constitutional theories of a group of authors who focused on the exclusive character of the nation’s constituent power. Theirs were theories that largely rejected the English tradition of parliamentary sovereignty, that is, of a parliament able to engage in both constituted and constituent activity. Importantly, these conceptions were developed at a time when it was not uncommon for written constitutions to lack amendment rules. Part III considers the work of a group of authors who, while largely operating under the Sieyèsian ‘constituent power of the nation’ approach, attempted to provide a more concrete form to ‘the nation’ without fully embracing Rousseau’s system of popular sovereignty. Finally, Part IV examines the work of authors who approach the theory of constituent power from a natural law perspective.

Between Law and 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.