The Long Shadow of Constituent Power: An Historical Critique

Abstract

According to the theory of constituent power, only the people can legitimately create constitutional orders. Emmanuel Sieyès and Carl Schmitt’s conception of the theory hold that this power is unmediated: its democratic purpose and procedure mean that legal devices cannot constrain its exercise. However, responding to concerns about the power’s use by authoritarian regimes to legitimate anti-democratic constitutional amendments, constitutional theorists have recently sought to devise ways to legally limit the power’s potential. This paper maintains that the theory and the critiques thereof are incomplete because they do not consider social and political factors – distinct from procedural concerns – relevant to how people perceive the legitimacy of constitutional regimes.

This paper advances three arguments. First, that Sieyès and Schmitt’s conception confers legitimacy and unlimited potential on procedurally correct exercises of the constituent power. Secondly, that this connection between procedure and legitimacy is not demonstrated by historical instances of revolutionary constitution-making. Finally, that revolutionary exercises of the power tend to destroy the democratic basis on which it is premised. The paper concludes by urging constitutional theorists to carefully examine contextual factors during instances of constitution-making and to distance the theory of constituent power from revolutionary instances of constitution-making.