Conclusion

2020 ◽  
pp. 295-306
Author(s):  
Joel Colón-Ríos
Keyword(s):  
Constituent Power ◽  
Constitutional Amendments ◽  
Legal Validity ◽  
Democratic Constitution ◽  
Constitution Making

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.

Democratic constitution-making and unfreezing the Turkish process

2010 ◽  
Vol 36 (3-4) ◽  
pp. 473-487 ◽  
Author(s):  
Andrew Arato
Keyword(s):  
Political Legitimacy ◽  
Democratic Legitimacy ◽  
Constituent Power ◽  
Short Article ◽  
The Government ◽  
Turkish Constitution ◽  
Popular Power ◽  
Democratic Constitution ◽  
Strong Claim ◽  
Constitution Making

This short article will seek to explore the causes, and possible solutions, of what seems to be the current freezing of the Turkish constitution-making process that has had some dramatic successes in the 1990s and early 2000s. I make the strong claim that democratic legitimacy or constituent authority should not be reduced either to any mode of power, even popular power, or to mere legality. It is these types of reduction that I find especially troubling in recent Turkish constitutional struggles, where the legal claims of two powers — the government-controlled legislative and the judicial branches — to structure the constitution are not backed by sufficient political legitimacy. In effect these two powers that claim their constituent authorization, rather implausibly in my view, from either the democratic electorate or from an original constituent power, because of their conflict threaten to freeze the constitution-making process that very much needs to be continued and concluded. I end the article by making a suggestion for one possible constitution-making procedure that would be both legitimate and legal.

Constituent Power and the Law

2020 ◽  
Author(s):  
Joel Colón-Ríos
Keyword(s):  
Latin American ◽  
Constitutional History ◽  
Constitutional Courts ◽  
Constituent Power ◽  
Constitutional Amendments ◽  
Constitutional Order ◽  
The People ◽  
The Right ◽  
Popular Initiative ◽  
Constitution Making

This book examines the place of the concept of constituent power in constitutional history, focusing on the legal and institutional implications that theorists, politicians, and judges have derived from it. It shows that constituent power, even though having historically been associated with extra-legality and violations of the constitutional order, has played important functions in the making of determinations of legal validity. Constitutional courts have employed it to justify their jurisdiction to invalidate constitutional amendments that alter the fundamental structure of the constitution and thus amount to a constitution-making exercise. Some governments have recurred to it to defend the legality of the transformation of the constitutional order through procedures not contemplated in the constitution’s amendment rule but considered participatory enough to be seen as equivalent to ‘the people in action’, and these attempts have sometimes been sanctioned by courts. Commentators and citizens have relied on the theory of constituent power to defend the idea that electors have the right to instruct representatives, and that the creation of new constitutions must take place through extra-legislative entities, such as primary assemblies open to all citizens. Several Latin American constitutions explicitly incorporate the theory of constituent power and allow citizens, acting through popular initiative, to trigger constitution-making episodes that may result in the replacement of the entire constitutional order. Building on these findings, the book ultimately develops a distinction between sovereignty and constituent power and argues that even a constitution-making body can be made legally subject to the conditions arising from a constituent referendum.

Constituent Power

2018 ◽  
Author(s):  
Nimer Sultany
Keyword(s):  
Political Order ◽  
Political Agency ◽  
Constituent Power ◽  
Constitution Making ◽  
The Revolution

This chapter argues that scholarly debates about constituent power presuppose a distinction between constituent power and constitutional form that is neither theoretically compelling nor practically illuminating. In contrast to constitutionalists, it argues that constituent power is inexhaustible, the revolution not being reducible to an event and thus constitution-making fails to terminate constituent power. In contrast to populists, it argues that constituent power does not operate in a constitutional vacuum because the judiciary imposes constitutional continuity through unwritten constitutional principles. The judiciary also polices will formation during revolutionary upheaval, as reflected in Egyptian and Tunisian judicial rulings and legal debates relating to the formation and functioning of constituent assemblies. Finally, the overlap between constitutive and legislative functions in the practice of constituent assemblies, and the deflation of the constituent power’s political agency are inconsistent with theories that present constituent power as an unbounded political agency that establishes a new political order.

The Implications of “Eternity Clauses”: The German Experience

2011 ◽  
Vol 44 (3) ◽  
pp. 429-448 ◽  
Author(s):  
Ulrich K. Preuss
Keyword(s):  
Adverse Effects ◽  
Hierarchical Model ◽  
Final Section ◽  
Constitutional Court ◽  
Constituent Power ◽  
Constitutional Amendments ◽  
Basic Law ◽  
Federal Constitutional ◽  
Alternative Understanding ◽  
Conceptual Possibility

This paper explores the conceptual possibility and implications of the concept of unconstitutional constitutional amendments. In the first section, the author argues that unconstitutional constitutional norms are conceptually impossible within the conventional hierarchical model of norms. In the second section, the author discusses the normative particularity of the amending power and concludes that an unlimited power may endanger the constitution. In sections III and IV, the author explains why so-called “eternity clauses,” in order to fend off such a danger, have been designed to place certain immutable elements of the constitution beyond the limits of the amending power. The paradigmatic case is the German Basic Law and a recent decision by the Federal Constitutional Court that discusses the implications of the “eternity clause” with reference to the distinction between constituent power and the constituted amending power. The author develops an alternative understanding of that distinction and its consequences for the amending power. The possible adverse effects of “eternity clauses” on the normality of the constitution are briefly considered in the final section.

From Mistrust to Understanding: Inclusive Constitution-Making Design and Agreement in Tunisia

2020 ◽  
pp. 106591292096710
Author(s):  
Tereza Jermanová
Keyword(s):  
Interpersonal Relationships ◽  
Process Tracing ◽  
Causal Mechanism ◽  
Constituent Assembly ◽  
Identity Based ◽  
Inclusive Processes ◽  
Democratic Constitution ◽  
The Way ◽  
Constitution Making

In 2014, Tunisia’s National Constituent Assembly (NCA) almost unanimously approved the country’s first democratic constitution despite significant identity-based divisions. Drawing on the Tunisian case, the article explores the role of an inclusive constitution-making process in fostering constitutional agreement during democratization. Emerging studies that link different process modalities to democracy have so far brought only limited illumination to how inclusive processes matter, nor were these propositions systematically tested. Using process tracing, and building on original interviews gathered in Tunisia between 2014 and 2020, this article traces a causal mechanism whereby an inclusive constitution-making process allowed for a transformation of interpersonal relationships between political rivals. It demonstrates that more than two years of regular interactions allowed NCA deputies to shatter some of the prejudices that initially separated especially Islamist and non-Islamist partisans and develop cross-partisan ties, thus facilitating constitutional negotiations. However, I argue that the way these transformations contributed to constitutional settlement is more subtle than existing theories envisaged, and suggest alternative explanations. The article contributes to the debate about constitution-making processes by unpacking the understudied concept of partisan inclusion and applying it empirically to trace its effects on constitutional agreement, bringing precision and nuance to current assumptions about its benefits.

scholarly journals Constitution-making: The round table model, popular participation & constituent assemblies

2021 ◽  
Author(s):  
◽  
Thomas Joseph Bailey Buchanan
Keyword(s):  
South African ◽  
Round Table ◽  
Dominant Group ◽  
Constituent Power ◽  
Popular Participation ◽  
Preferable Alternative ◽  
Table Model ◽  
South African Constitution ◽  
The Ideal ◽  
Constitution Making

<p>In this paper, I will argue that the round table model is the ideal constitution making process. This is primarily because it gives clarity to the respective powers of the institutions involved in the process, and may prevent a dominant group or individual from unilaterally imposing a constitution. In building my argument, I outline the theory of constituent power and its corollaries of unlimited constitution making power and popular participation. I endeavour to portray the shortcomings of the theory itself, and, the dangers of its practical manifestation. Following this, I introduce the round table model as a preferable alternative, both theoretically and practically. To buttress my argument, I examine the Bolivian, Venezuelan, Russian and South African constitution making episodes.</p>

Introduction

2020 ◽  
pp. 1-28
Author(s):  
Joel Colón-Ríos
Keyword(s):  
Political Action ◽  
Constituent Power ◽  
Amendment Rule ◽  
Constitution Making

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.

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