Constraining constituent conventions: Emmanuel Joseph Sieyès and the limits of pouvoir constituant

Abstract

Abstract Constituent power is widely viewed as the people’s legally unlimited power to make constitutions. This Popular Account of Constituent Power, as I call it, has been particularly influential in Latin American constitution-making processes, where it is often invoked as a justification for constituent conventions to ignore limits imposed on them. Although Carl Schmitt’s constitutional theory is a prominent source for the Popular Account, its proponents ultimately believe it to be based on Emmanuel Joseph Sieyès’s theory of pouvoir constituant. In this article, I show that this belief is unfounded. As I argue, Sieyès’s theory is best viewed as a secularized natural law theory that limits constituent power. Focusing on constituent conventions in particular, I demonstrate that Sieyès’s theory imposes two constraints on them: their mandate from the people and the common interest. I show the practical relevance of this finding by applying it to the current constitution-making process in Chile.