scholarly journals ANSWER TO FOUR QUESTIONS ON THE LEGISLATIVE AND EXECUTIVE POWERS

2020 ◽  
Vol 13 (33) ◽  
pp. 277-289
Author(s):  
Thomas Paine
Keyword(s):  
Constitutional Reform ◽  
Constituent Power ◽  
Thomas Paine ◽  
Legislative Power ◽  
Institutional Organization ◽  
The Revolution

Thomas Paine, answering, supposedly, to Condorcet, about institutional definitions proposed to French Constitution, after the Revolution. He deals with themes as division and balance of powers; constitutional control; Legislature institutional organization; hereditary monarchy; constituent power and legislative power; constitutional reform.

Sieyès via Rousseau

2020 ◽  
pp. 56-76
Author(s):  
Joel Colón-Ríos
Keyword(s):  
French Revolution ◽  
Constitutional Reform ◽  
General Will ◽  
Constituent Power ◽  
Legislative Power ◽  
The Third ◽  
The Creation ◽  
Law Making ◽  
Legal Force

This chapter traces the gradual emergence of the distinction between the constituted and the constituent power in the work of Sieyès, using Rousseau as the main source of comparison. It examines how Sieyès constructed constituent power as an extra-legal force and identifies the key juridical implications of his views. Part I briefly considers some uses of the term ‘constituent power’ before Sieyès and outside the context of the French Revolution. Part II examines Sieyès’ early pamphlets, where he puts forward his initial understanding of the power to be exercised by the nation’s representatives in the Estates-General. This approach, it will be seen in Part III, led him to propose the creation of a supreme constitution that ensured that the (representative) law-making power acted consistently with the general will. Part IV of the chapter focuses on Sieyès’ main published work, What is the Third Estate?, which contains a more developed formulation of the distinction between constituent and constituted power, as well as about the nature of representation. In that work, one can also see a transformation of Sieyès’ conception of the legislative power, one that brought him further than ever away from Rousseau. Finally, the chapter considers the role of extra-ordinary representatives in Sieyès’ conception of constitution-making and constitutional reform.

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.

Does Nature Confer Rights?

2019 ◽  
pp. 183-210
Author(s):  
Susan Marks
Keyword(s):  
Edmund Burke ◽  
Thomas Paine ◽  
The Real ◽  
The People ◽  
Starting Point ◽  
The Revolution

This chapter takes Hannah Arendt’s engagement with Edmund Burke in Origins of Totalitarianism as a starting-point for considering the interrelation in the Revolution controversy of nature, history, and rights. Evidence is presented of a mode of argumentation that is (by today’s standards) eclectic and historicising. Thus, the rights of man were at once natural and historical, and while Thomas Paine asserted the novelty of their study, Thomas Spence framed his exposition of the ‘real rights of man’ with reference to an older tradition that links him to the people and events touched on in earlier chapters of this book.

The Material Constitution

2020 ◽  
pp. 186-225
Author(s):  
Joel Colón-Ríos
Keyword(s):  
Historical Development ◽  
Constitutional Reform ◽  
Material Constitution ◽  
Constituent Power ◽  
Legal Limits ◽  
Power Part ◽  
Ordinary Power ◽  
Descriptive Approach ◽  
Special Rule ◽  
The Relationship

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.

An Answer to the Question

2016 ◽  
Author(s):  
John Mac Kilgore
Keyword(s):  
Immanuel Kant ◽  
Social Power ◽  
Colonial America ◽  
Living Will ◽  
Constituent Power ◽  
Thomas Paine ◽  
Revolutionary Era ◽  
Early American ◽  
The People ◽  
The Right

This chapter analyzes the broad history and philosophy of enthusiasm from the Antinomian Crisis of 1636-1638 in colonial America to the revolutionary Enlightenment at the end of the eighteenth century. From Immanuel Kant to Thomas Paine, Anne Hutchinson to Nathaniel Hawthorne, enthusiasm emerges as a discourse of “constituent power,” the notion in political theory that democracy emanates from the living will of the people and that individuals have the right, therefore, to resist or abolish governments that use the force of law to abuse them. The author argues that, in early American debates about religious antinomianism, especially women’s access to political or social power, the language of enthusiasm was a theological construct of “constituent power” that became overtly politicized in the Revolutionary era and eventually incorporated into Romantic philosophy. Finally, through short readings of Charles Brockden Brown’s Ormond and Sarah Pogson’s The Female Enthusiast, the chapter demonstrates that certain literatures of the early Republic define enthusiasm (as women’s dissent and constituent power) over/against domestic sensibility and the sentimental tradition.

The French Revolution Controversy

2019 ◽  
pp. 95-120
Author(s):  
Susan Marks
Keyword(s):  
Eighteenth Century ◽  
French Revolution ◽  
Public Discourse ◽  
Mary Wollstonecraft ◽  
Political Community ◽  
Edmund Burke ◽  
The Political ◽  
Thomas Paine ◽  
The French Revolution ◽  
The Revolution

The rights of man ‘arrived’ in England, in the sense of beginning to circulate in public discourse and becoming a topic on which people staked out positions, during the final decade of the eighteenth century. The context was debate over the significance of the French Revolution for England (the ‘Revolution controversy’). This chapter initiates discussion of the contested meaning of the rights of man in that debate, examining contributions by Richard Price, Edmund Burke, Mary Wollstonecraft and Thomas Paine. A vision of the rights of man emerges as the rights of the living to control the political community of which those latter are a part.

Capital, Corporations, and Their Discontents in Making California's Constitutions, 1849–1911

2011 ◽  
Vol 80 (4) ◽  
pp. 521-556 ◽  
Author(s):  
Arthur Rolston
Keyword(s):  
United States ◽  
Twentieth Century ◽  
State Legislatures ◽  
The United States ◽  
Constitutional Reform ◽  
Special Interests ◽  
The West ◽  
Constitutional Development ◽  
Economic Relationships ◽  
Legislative Power

This article traces California's constitutional development from 1849 through 1911, examining how and why California's constitution developed into a quasi-legislative document that constitutionalized policies involving corporations, banks, railroads, taxes, and other economic relationships, thereby limiting the power of the legislature. I argue that drafters of California's constitutions deliberately curtailed legislative power and transformed class issues into constitutional ones. California's experience was consistent with state constitutional developments throughout the United States, especially in the West. Advocates of constitutional reform saw state legislatures as corrupt captives of "capitalists" and other "special interests" that could not to be trusted to serve the people's interests. These issues permeated debates over constitutional reform in California and other states from the 1840s through the initial decades of the twentieth century, leading to the adoption of the initiative and referendum.

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