The Politics of the Question of Constituent Power

Abstract

This chapter mounts a defence of a liberal constitutionalism in which constitutional architecture is treated as eclipsing constituent power, not on the basis of the empirical inevitability of the legal taming of the political, but on account of the impossibility of developing normative accounts of how we might live together except on the basis of such a working assumption. Against Schmitt's claim that constitutional authority cannot escape its origins in constituent power, the chapter defends a liberal account of the rule of law.

The Complacency of Legality: Constitutionalist Vulnerabilities to Populist Constituent Power

“…The necessary precondition for this was to prevent the constituent power from "[reasserting] itself from within the constitutional order". 40 This required eroding the concept of constituent power as far as possible in order to replace "a constitutionalism based on constituent power with one founded on legality". 41 Normativism can be regarded as the basis of the processes of constitutionalisation 42 that have taken place over the past decades.…”

Arendt's Revolutionary Constitutionalism: Between Constituent Power and Constitutional Form

“…16 In a more recent interpretation of the liberal position, David Dyzenhaus has put forward the argument that for most of those who belong to what he describes as a normativist school of thought, such as Ronald Dworkin and Lon L. Fuller, the question of constituent power simply does not arise. 17 Dyzenhaus contends that liberal theorists do not require a conception of constituent power to provide an account of the authority of law and are instead committed to showing how legal order and law itself are best understood from the inside, from a participant For Dyzenhaus, one does not need to search outside the basic laws of a political regime for an external ground of authority because there are reasons intrinsic to the operation of laws that generate sufficient moral and legal authority. This approach seeks to sideline the question of constituent power altogether in favor of what is perceived as the more central concept of legality through an analysis of its moral evolution and self-justifying effects.…”

Nepali Constitution‐Making After the Revolution

“…The order of power, embodied in the state structure and established by the Constitution, replaces the constituent power; the arising constituent power fades away, or is perhaps reconstructed into the individuals who will be so governed by that state that is newly formed. 28 Post-Constitution, the end product is a juridical framework, in which the boundaries of state power are formally set in relation to the individual citizen. 29 Implicit in this framework is that state structures enjoy limited powers.…”