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.