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.
This article provides a justification for the exercise of universal jurisdiction in cases of serious environmental damage. This justification rests in important ways on the theory of constituent power. The theory of constituent power has an intergenerational component that requires the protection of the environmental conditions that allow future generations to engage in constitution-making episodes. This article maintains that, by virtue of the connections between constituent power, the right to self-determination, and state sovereignty, the justification for the exercise of universal jurisdiction for serious environmental damage is at least as compelling as the justification for its exercise with respect to egregious human rights infringements. In those scenarios, courts exercising universal jurisdiction would be acting to protect the ability of present and future peoples to participate in the constitution and reconstitution of the states that make up the international community. Such a jurisdiction would rest on the authority of humanity as a whole rather than on that of any state or people.Cet article tente de justifier l’exercice de la juridiction universelle dans les cas de grave dommage à l’environnement. Cette justification se base de façons importantes sur la théorie du pouvoir constituant. Cette théorie comporte un élément intergénérationnel qui exige la protection des conditions environnementales qui permettraient aux générations à venir d’entreprendre à leur tour des épisodes de création de constitutions. Cet article soutient qu’en vertu des connexions entre le pouvoir constituant, le droit à l’autodétermination, et à la souveraineté de l’état, la justification de l’exercice de la juridiction universelle dans les cas de grave dommage à l’environnement est au moins aussi puissante que la justification de son exercice dans le contexte des violations flagrantes des droits humains. En exerçant la juridiction universelle dans ces scénarios, les tribunaux agiraient pour protéger la capacité des peuples actuels et futurs à participer à la constitution et à la reconstitution des états qui composent la communauté internationale. Une telle juridiction se fonderait sur l’autorité de l’humanité dans l’ensemble plutôt que sur l’autorité d’un état ou d’un peuple en particulier
This chapter examines the ways in which the debates about the nature and implications of the theory of constituent power that arose during the French Revolution reappeared in later constituent episodes. It pays particular attention to the electoral rules regulating citizen activity and to the types of constitutional forms that resulted from them. In Part I, the chapter explores the distinction between the constituent power of the people and the constituent power of the nation. From each of these notions, emanate different types of legal and institutional demands on the juridical order. After distinguishing between these two approaches, the chapter examines, in Part II, the ways in which they were (or not) put into practice in the constitution-making process that resulted in the creation of the Spanish Constitution of 1812. Part III focuses on the creation of the Venezuelan Constitution of 1811 and Part IV examines the process that led to the adoption of the Colombian Constitution of 1886. During these three processes, constituent power became an extraordinary constitution-making jurisdiction directed at the identification of the common good, and as a power that could be exercised through mechanisms that excluded important parts of the population.
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