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.

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.

scholarly journals Protecting popular constituent power: Examining New Zealand's role in the constitution-making episodes of the Cook Islands and Niue

2021 ◽  
Author(s):  
◽  
Sarah Mead
Keyword(s):  
Self Determination ◽  
Democratic Legitimacy ◽  
Stage Model ◽  
Political Will ◽  
Constituent Power ◽  
Cook Islands ◽  
Island States ◽  
The People ◽  
External Actors ◽  
Constitution Making

<p>This paper assesses the democratic legitimacy of the constitution-making processes that brought into being the Constitutions of the Cook Islands and Niue. New Zealand’s role in the decolonisation of its former colonies has generally been seen as quite benign. New Zealand’s status as an external actor however raises questions regarding the effect its influence had on the democratic legitimacy of the respective constitution-making processes. Constituent power theory demands that a constitution is the product of the popular political will; an act of self-determination undertaken by the people, for the people. This paper argues that the existence of external influence in the constitution-making process is not necessarily at odds with this. The democratic legitimacy of the constitution-making process is dependent on the constitution being a manifestation of the people’s constituent power. Insofar as external actors do not displace the people’s constituent power but rather enhances it, there is no reason to exclude such influence; there may even be reason to encourage it. By drawing on New Zealand’s experience in decolonisation, this paper ultimately advances a two-stage model for constitution-making in the context of small, dependent non-self-governing island-states. As on-going political ties with an external state are often sought, the aim of the model is to provide an avenue for that external state to participate in or contribute to the constitution-making process while maintaining the process’ democratic legitimacy.</p>

scholarly journals Democracy, Constitutionalism and the Rule of Law: Beholden to Constituent Power

2021 ◽  
Author(s):  
◽  
Ivan Sage
Keyword(s):  
Rule Of Law ◽  
Constituent Power ◽  
The Rule Of Law ◽  
The People ◽  
Egalitarian Society ◽  
Parliamentary Supremacy ◽  
The Government ◽  
Principle Of Legality ◽  
Ultimate Principle ◽  
Constitution Making

<p>Democratic government serves two purposes, both requiring that the substantive element of the rule of law be adhered to. A living constitution is required by a government to able to maintain civil society, which is the main occupation of the rule of law and, secondly, the rule of law also vouchsafes rights and freedoms. Hence, the rule of law enforced by the courts is the factor that controls the constitution, and increasingly this includes controlling the government, both the legislature and executive. This paper considers the capacities of democracy, constitutionalism and the rule of law, in the context of both New Zealand’s unwritten and America’s written constitutions, with the view of locating the constitution making power (constituent power). The power that makes and changes the constitution was originally found with the people, parliament, and the executive. However, a modern formulation of the rule of law that seeks to replace parliamentary supremacy as the ultimate principle of legality appears to be arising. An egalitarian society is becoming the preferred option by all parties. In this context, the constitution making power will be with the vessel that is working towards creating such a society. To that end, the paper recommends a Constitutional Commission for New Zealand that would review legislation for constitutionality, including adherence to the rule of law. The objective of the Constitutional Commission would be to recommend the review of law for constitutionality, including adherence to the rule of law.</p>

scholarly journals Democracy, Constitutionalism and the Rule of Law: Beholden to Constituent Power

2021 ◽  
Author(s):  
◽  
Ivan Sage
Keyword(s):  
Rule Of Law ◽  
Constituent Power ◽  
The Rule Of Law ◽  
The People ◽  
Egalitarian Society ◽  
Parliamentary Supremacy ◽  
The Government ◽  
Principle Of Legality ◽  
Ultimate Principle ◽  
Constitution Making

<p>Democratic government serves two purposes, both requiring that the substantive element of the rule of law be adhered to. A living constitution is required by a government to able to maintain civil society, which is the main occupation of the rule of law and, secondly, the rule of law also vouchsafes rights and freedoms. Hence, the rule of law enforced by the courts is the factor that controls the constitution, and increasingly this includes controlling the government, both the legislature and executive. This paper considers the capacities of democracy, constitutionalism and the rule of law, in the context of both New Zealand’s unwritten and America’s written constitutions, with the view of locating the constitution making power (constituent power). The power that makes and changes the constitution was originally found with the people, parliament, and the executive. However, a modern formulation of the rule of law that seeks to replace parliamentary supremacy as the ultimate principle of legality appears to be arising. An egalitarian society is becoming the preferred option by all parties. In this context, the constitution making power will be with the vessel that is working towards creating such a society. To that end, the paper recommends a Constitutional Commission for New Zealand that would review legislation for constitutionality, including adherence to the rule of law. The objective of the Constitutional Commission would be to recommend the review of law for constitutionality, including adherence to the rule of law.</p>

scholarly journals Manual para construir un estado (los informes del Consejo Asesor para la Transición Nacional de Cataluña)

2016 ◽  
pp. 499
Author(s):  
Josu de Miguel Bárcena
Keyword(s):  
Point Of View ◽  
Advisory Council ◽  
Democratic Legitimacy ◽  
Constituent Power ◽  
Independent State ◽  
Regional Institutions ◽  
Unilateral Declaration ◽  
Different Dimensions ◽  
The Government ◽  
Ontological Concept

La pretensión de este trabajo es analizar los informes del Consejo Asesor para la Transición Nacional de Cataluña. El Consejo de Transición Nacional es un órgano creado por la Generalidad de Cataluña en 2013, para asesorar a las instituciones regionales en cuestiones jurídicas, políticas y económicas relacionadas con la creación de un Estado independiente. Metodológicamente, se ha utilizado un concepto ontológico de poder constituyente, priorizando aquellos aspectos que en los informes estudian las distintas dimensiones del proceso democrático para legitimar la secesión, la posible declaración unilateral de independencia, la formación y construcción del futuro Estado catalán y, desde una perspectiva institucional, las consecuencias nacionales e internacionales de la autodeterminación.The aim of this paper is to analyze the reports of the Advisory Council for the National Transition of Catalonia. The Advisory Council for the National Transition is a body created by the Government of Catalonia in 2013, to advise regional institutions in legal, political and economic issues related to the creation of an independent state. Methodologically, we used an ontological concept of constituent power, focusing on those aspects that in the reports studying the different dimensions of the democratic legitimacy of secession, the unilateral declaration of independence, the formation and building of the future Catalan state and, from an institutional point of view, the national and international consequences of self-determination.

Participatory constitution-making: Introduction

2020 ◽  
Vol 18 (1) ◽  
pp. 173-178
Author(s):  
Sujit Choudhry ◽  
Mark Tushnet
Keyword(s):  
Political Legitimacy ◽  
Popular Sovereignty ◽  
Third Wave ◽  
Constituent Power ◽  
Popular Participation ◽  
The People ◽  
The Will ◽  
Hypothetical Consent ◽  
Elected Representatives ◽  
Constitution Making

Abstract At least since the late eighteenth century, constitutions have been understood as emanations of the will of “the People,” as the ultimate expression of an inherent popular sovereignty. In the form of theories of constituent power, accounts of constitutional foundations blended notional or conceptual “descriptions” of the People, which anchored the political legitimacy of constitutional orders in the idea of hypothetical consent, with empirical claims that the nation’s actual people were represented in constitution-making processes through elected delegates and thereby were the authors of and gave consent to its fundamental law. As part of the third wave of democratization, there was an important shift in what popular participation consisted of—from indirect participation by elected representatives to direct, popular participation in the constitution-making process. As a matter of constitutional process, this led to the growing practice, and expectation, that major constitutional changes should be ratified through referenda.

scholarly journals Protecting popular constituent power: Examining New Zealand's role in the constitution-making episodes of the Cook Islands and Niue

2021 ◽  
Author(s):  
◽  
Sarah Mead
Keyword(s):  
Self Determination ◽  
Democratic Legitimacy ◽  
Stage Model ◽  
Political Will ◽  
Constituent Power ◽  
Cook Islands ◽  
Island States ◽  
The People ◽  
External Actors ◽  
Constitution Making

<p>This paper assesses the democratic legitimacy of the constitution-making processes that brought into being the Constitutions of the Cook Islands and Niue. New Zealand’s role in the decolonisation of its former colonies has generally been seen as quite benign. New Zealand’s status as an external actor however raises questions regarding the effect its influence had on the democratic legitimacy of the respective constitution-making processes. Constituent power theory demands that a constitution is the product of the popular political will; an act of self-determination undertaken by the people, for the people. This paper argues that the existence of external influence in the constitution-making process is not necessarily at odds with this. The democratic legitimacy of the constitution-making process is dependent on the constitution being a manifestation of the people’s constituent power. Insofar as external actors do not displace the people’s constituent power but rather enhances it, there is no reason to exclude such influence; there may even be reason to encourage it. By drawing on New Zealand’s experience in decolonisation, this paper ultimately advances a two-stage model for constitution-making in the context of small, dependent non-self-governing island-states. As on-going political ties with an external state are often sought, the aim of the model is to provide an avenue for that external state to participate in or contribute to the constitution-making process while maintaining the process’ democratic legitimacy.</p>

scholarly journals Protecting Popular Constituent Power: Examining New Zealand's Role in the Constitution-Making Episodes of the Cook Islands and Niue

2014 ◽  
Vol 45 (4) ◽  
pp. 577
Author(s):  
Sarah Mead
Keyword(s):  
Self Determination ◽  
Democratic Legitimacy ◽  
Stage Model ◽  
Political Will ◽  
Constituent Power ◽  
Cook Islands ◽  
Island States ◽  
The People ◽  
External Actors ◽  
Constitution Making

This article assesses the democratic legitimacy of the constitution-making processes that brought into being the Constitutions of the Cook Islands and Niue. New Zealand's role in the decolonisation of its former colonies has generally been seen as quite benign. New Zealand's status as an external actor, however, raises questions regarding the effect its influence had on the democratic legitimacy of the respective constitution-making processes. Constituent power theory demands that a constitution is the product of the popular political will; an act of self-determination undertaken by the people, for the people. This article argues that the existence of external influence in the constitution-making process is not necessarily at odds with this. In so far as external actors do not displace the people's constituent power but rather enhance it, there is no reason to exclude such influence; there may even be reason to encourage it. By drawing on New Zealand's experience in decolonisation, this article ultimately advances a two-stage model for constitution-making in the context of small, dependent non-self-governing island states. As ongoing political ties with an external state are often sought, the aim of the model is to provide an avenue for that external state to participate in or contribute to the constitution-making process while maintaining the process's democratic legitimacy.

Hail Columbia!

2020 ◽  
Author(s):  
Laura Lohman
Keyword(s):  
Political Development ◽  
Political Legitimacy ◽  
War Of 1812 ◽  
Early American Republic ◽  
Revolutionary Era ◽  
Early American ◽  
Political Beliefs ◽  
Political Debates ◽  
Political Dominance ◽  
The Government

This book examines music as political expression in the early American republic from the post-revolutionary era through the aftermath of the War of 1812. Americans used music as a discursive tool during every major political development. The nation’s leaders faced challenges ranging from threats to the structure of the government to impressment, all amid the nearly constant threat of embroilment in European war and insecurity about the republic’s viability. Americans responded by using music to protest, stifle protest, propagandize, and vie for political dominance. Through music they persuaded, intimidated, lauded, legitimated, and demonized their fellow Americans based on their political beliefs and actions. In music they debated crucial questions about the roles and rights of citizens, the structure of government, and the pursuit of peace and prosperity. They used music to construct powerful narratives about the nation’s history, values, and institutions; to celebrate the accomplishments of country, community, and individual; and to reinforce a sense of identity in national and partisan terms. Organized chronologically, chapters address musical forms of propaganda during ratification of the Constitution, musical expression of transnational revolutionary aspirations, Federalist and Republican narratives of political legitimacy in music, political debates in music during the embargo years, and musical myth-making during the War of 1812. The conclusion summarizes this music’s reception through the remainder of the nineteenth century.

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.

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