Is it time to abandon the theory of constituent power?

Abstract

Abstract A group of scholars has shown that the theory of constituent power—which seeks to describe and justify the dismantling of the constitutional order and its replacement with a new constitution—is flawed. The analytical tools the theory deploys fail to explain how constitution-making processes unfold. Also, the theory has been subject to normative challenges that question its democratic nature. However, the theory remains a mainstream idea in many countries, and some academics have attempted to defend its democratic nature. I claim that those attempts have rendered the theory meaningless or failed to address all of its problems. I then raise two objections. First, the constituent power theory cannot be used to justify most—if any—constitution-making processes without an excessive idealization of the founding moment, but we are yet to understand the actual costs of that idealization. Second, redeemers of the theory need to decide whether constitution-making can operate under reasonably favorable electoral and democratic conditions or not. Ideal conditions are improbable when constitutional change is carried out in response to a crisis. In the unlikely case that these conditions can be met, using an idea of constitutional change as radical as the constituent power theory is not warranted from a normative perspective. I call this the dilemma of constituent power redemption.