Constituent Power and its Institutions

Constituent Power and its Institution

Joel I. Colón-Ríos is a Lecturer in Law at Victoria University of Wellington, Wellington, New Zealand.
Eva Marlene Hausteiner is a Postdoctoral Lecturer and Researcher in Political Theory at the University of Bonn, and an affiliated member of the Research Cluster “Transformations of Antiquity” at Humboldt University, Berlin, Germany.
Hjalte Lokdam is an ESRC Postdoctoral Fellow at the London School of Economics and Political Science, London, UK.
Pasquale Pasquino is a Professor at the New York University’s Department of Politics, USA.
Lucia Rubinelli is an Assistant Professor of Political Science at Yale University, USA.
Will Selinger is Lecturer in European History at University College London, UK.

At least since the French Revolution, the idea of constituent power has been used to show the power the people have to create legal-political orders. The history of constituent power is deeply tied to the principle of popular power and, through it, to the history of democracy, its theory, and its practice. Not only does constituent PowerPoint to the process through which a democratic polity is instituted via procedures of constitution-making. It also acts as a reminder that the source of constitutional normativity lies in the will of the people. As a result, constituent power functions as a ‘bridge concept’ between the sphere of law and that of politics. This has traditionally resulted in two separate fields of academic scholarship. On the one side are those who think about constituent power to study the legal implications of the idea. They focus on the workings of constituent assemblies and the status of constitutional norms, their amendment procedures, and their relationship to secondary law-making. This approach highlights the centrality of the idea of constituent power in the workings of the legal system. On the other side, are those scholars who look at constituent power to emphasize its political dimension. This is often part of a project of constitutional contestation, whereby constituent power is presented as an absolute popular power that can never be reduced to legal norms and that, as a result, exists alongside the constitutional system and can overturn it. In this critical exchange, we aim to raise a distinct set of questions and ask how the idea of constituent power informs our way of thinking about some fundamental institutions of the modern democratic state: constitutional courts, legislatures, federalism, and central banks and referendums.

At its core, the legitimacy of modern democratic states lies because they are structured around the principle according to which power belongs, and spring from the will of the people. This is clear at the level of the state’s structure, and much work has been done to determine the specific relationship that ties the liberal constitutional state to the democratic principle of popular power. The legitimacy of single institutions depends on their consistency with the principle of popular power. This is not only true of well-studied institutions such as parliaments and constitutional courts but also relatively overlooked ones of the likes of referendums, federalism, electoral laws, bicameral legislatures, and central banks, to name just a few. Yet the principle of popular power has no single meaning and can be articulated in a variety of different ways, which offer different accounts of what makes state institutions democratically legitimate. Depending on how the principle of popular power is interpreted, some institutions may appear completely legitimate, while others will not.

The history of the French Revolution offers a stark example. When debating the institutional implications of the newly established principle of popular power, representatives at the National Constituent Assembly of 1789 found themselves divided between at least two camps. Those, like Mirabeau, who understood the principle of popular power as expressed through the language of national sovereignty, believed that we could only realize it through the mediation of representatives in the assembly. Those, like Pétion, who relied on the idea of popular sovereignty, argued that only forms of direct or semi-direct democracy were consistent with the principle of popular power. [1] This divergence not only underscored different understandings of who the people were and what their political power entailed, but they also had divergent institutional implications: while supporters of national sovereignty defended the institution of the representative mandate, theorists of popular sovereignty argued in favor of the imperative mandate. The French National Assembly eventually opted for representative mandates, which became standard practice around the world. Yet, the principle of popular power is still interpreted in a variety of ways, which correspond to different ways of assessing the democratic legitimacy of modern institutions. Among the various ways of conceptualizing the principle according to which power belongs to the people is also the idea of constituent power, which is the subject of this Critical Exchange.

In what follows, we ask: what are the consequences of assessing the legitimacy of given institutions through the lenses offered by the notion of constituent power? To do so, we start from the premise that constituent power represents a specific interpretation of the principle of popular power. We take constituent power to be neither a term that shows just any meaning of the principle nor an abstract and indeterminate account of popular power. Instead, we believe that constituent power has a discreet meaning of its own and that it offers a specific interpretation of the principle of popular power. The specificity of constituent power derives from both its conceptual structure and its history. Starting with the former, and as the very words suggest, constituent power is part of a conceptual pair. It is a power that makes up legal-political structures and that is in direct conceptual relation to the idea of a made-up power. This shows institutions as different as supreme courts and soviets, electoral laws, and revolutionary assemblies. Yet they all have in common the fact that they have not constituted themselves. Instead, they owe their origins to a superior source of political legitimacy, i.e. the constituent power. Because of this intimate connection with the made-up powers, the idea of constituent power is conceptually different from other interpretations of popular power, including the more popular notion of sovereignty. [2] The latter, in all its various iterations, has no necessary conceptual connection to the institutionalization of power. Sovereignty, by definition, is a power that is self-standing, and nothing in its conceptual structure suggests that it needs to be used to institutionalize power. Although the notion of sovereignty can, of course, be used to legitimize the creation of legal and political institutions, the concept itself does not bind it to a type of politics that is constituted. Constituent power, almost out of conceptual necessity, is strictly connected to institutional politics.

The history of the idea also proved the specificity of constituent power as a way of thinking about popular power. While different renditions of this history exist, the first modern uses of constituent power coincide with French revolutionary political thought and with Emmanuel Sieyès’ claim that, in 1789, the Third Estate was the bearer of the pouvoir constituant. [3] This meant that only the productive part of society, as opposed to the nobility and the clergy, had the right to exercise political power and, through it, to make up a new constitutional order. While arguing this case, Sieyès was careful not to confuse his theory of constituent power with competing accounts of popular power channeled through the language of sovereignty. This was because Sieyès maintained the very term sovereignty entailed an absolute power that can never be restrained and that could be abused by its bearer, be it the people, the king, or parliament. Constituent power is exercised only to create a constituted order, which is limited, regulated, and kept in check because it is not the source of its legitimacy and that cannot change its mandate. Starting from this first theorization of constituent power, it was used widely from the idea in a variety of different contexts across the nineteenth and twentieth centuries. In each of these contexts, it offered slightly different interpretations of what it meant to say that political power belongs to the people, and it was used to legitimize widely unique sets of institutional structures. [4] Yet all these different theories and uses of constituent power had one thing in common: they portrayed constituent power as being in strict conceptual relation with the institutions of the modern constitutional state. [5] This relation underscores the specificity of constituent power as a conceptualization of the principle of popular power, both from a historical and a conceptual perspective. And it is precisely the specific relation connecting the idea of constituent power to what I have hitherto referred to as ‘institutions’ that is the subject of this Critical Exchange.

In the contributions that follow, the authors investigate the specific relation connecting the idea of constituent power to the following institutions: constitutional courts, referendums, federalism, central banks, and legislatures. Some of these institutions, such as constitutional courts and legislatures, have a long historical connection to the idea of constituent power, whose features we aim to elucidate and problematize in the pages of this Critical Exchange. Other institutions, such as central banks, are not usually analyzed about the idea of constituent power or are mostly discussed concerning ideas of sovereignty, referendums, and federalism. The theorists included here will take a different approach and suggest that there is much to be learned from broadening the analysis of such institutions to include the idea of constituent power.

In the first contribution, Pasquale Pasquino examines the role of constitutional courts. He argues courts are legitimate only where they act as a ‘derivative constituent power’. This means that their role is limited to filling the gaps present in the constitution and to interpreting the principles and values informing the original decision of the constituent power. To do so, courts cannot act in the void, ignoring the specific socio-historical circumstances they are called to act upon. This means that, instead of blindly applying the values of the original constituent power, they ought to interpret them in the light of changing historical circumstances. Equally, courts cannot be captured by the executive or by the legislature and keep their legitimacy vis-à-vis the constituent of power. They must maintain their independence as part of a wider system of separation of powers. It thus follows that the legitimacy of constitutional courts depends on their capacity to uphold the values expressed by the original constituent power while integrating them with the specific interpretations of those values prevalent in a society at a certain point in time.

Our second contributor is Joel Colón-Ríos, who asks: what are the theoretical and practical consequences of thinking about referendums through the idea of constituent power? He argues that the very conceptual structure of the idea complicates the relationship between the referendum and democracy. If, as scholars often seem to believe, the referendum is an instance of direct democracy, then it cannot express constituent power, which is a creature of representative politics. According to the theory of constituent power, there must be a separation between popular authority and governmental power. If referendums are indeed expressions of direct democracy, then they abolish the distinction between constituent and constituted power, and transfer all powers into the hands of the people. Yet Colón-Ríos maintains that this argument is misleading. Referendums are themselves part of representative politics. They are organized according to legal procedures, often by representatives, who decide on the question to be put to the people and on the composition of the electorate. The referendum is part of the made-up order and expresses the will of the constituted powers, i.e. the representatives and the electors. It thus follows that the legitimacy of the referendum derives not from its direct appeal to the people, but from the fact that it is part of the institutional structure of the constitutional state. Yet, Colón-Ríos maintains that the constituted nature of the referendum can, at exceptional times, effectively channel the will of the constituent power. This happens only when the referendum is used to change the constitution or to establish a mandate to create a new constitutional text. On these rare occasions, the referendum gets legitimacy, not from the constituted order, but because of the constituent will it expresses.

In our third contribution, Eva Marlene Hausteiner analyses the role of constituent power in federal states. This question, she argues, demands special attention because of the peculiarly complex nature of federal constitutions. These are indeed prone to radical change, which takes place outside the limits imposed by the constitution but does not overthrow it. Good examples are processes of annexation and secession, or changes in the distribution of power across regional, state, and federal levels. These changes express neither a constituent power of revision, as the constitution does not regulate them, nor a fully-fledged constituent power, as they do not create a new constitutional order. Hausteiner suggests we should consider them the expression of a re-constituent power. Further, the subject of constituent power is also different in federal states. While we identify the source of legitimacy of unitary constitutions in the will of a ‘unitary people’—as fictional as this unity effectively is—federal states are made of multi-layered demos. This means that the subject of constituent power expresses itself through a multi-layered process of decision-making which, Hausteiner suggests, adds up to a more demanding standard of democratic legitimacy and could be called pouvoir constituant mixte.

Hjalte Lokdam’s contribution to this exchange questions whether central banks and the European Central Bank, in particular, are to be considered democratically legitimate. He argues that the idea of constituent power, although only rarely applied to central banks, can offer a valuable frame to answer this question. First, Lokdam maintains that, differently from other central banks, the ECB could effectively be thought of as a product of the European constituent power, although this is a multi-layered power acting through extraordinary representatives in a federal setting. Second, Lokdam asks what are the implications of thinking about the ECB through the idea of constituent power. While, on the one hand, associating the ECB with constituent power gives it democratic legitimacy, it engenders some risks. This is because, if the mandate of the ECB comes directly from the people, then it must be a rigid mandate, which cannot be easily bent to changing political circumstances. Yet, in moments of crisis, such as the sovereign debt crisis of 2011, this very rigidity might become an obstacle to prompt action and result in the suspension of the ECB’s democratic mandate. This gives a free hand to the unelected experts and insulates their acts from democratic contestation. Whether a European constituent power could give a more flexible mandate, and hence give both legitimacy and flexibility to the ECB, remains an open question.

Our last contribution is by William Selinger. He asks how the role of the legislature would change if we assessed the idea of constituent power. At first sight, Selinger suggests, it looks like the power of the legislature would have to be limited by the fact of being a made-up power. This argument is further strengthened because circumscribing the power of the representative assembly was one of Sieyès’ major goals when theorizing constituent power. Yet, Selinger argues, if we stopped thinking about the legitimacy of legislatures in terms of sovereignty, and instead started referring to constituent power, we might come to a surprising conclusion. The idea of constituent power, when associated with legislatures, strengthens their power and that of the representatives who sit in them. This is because constituent power depicts the people as the source of power, which, however, disappears in the background during times of ordinary politics. It thus follows that, differently from what happens with the idea of sovereignty, we cannot consider the people the ultimate decision-makers. This power is vested in the representatives, who are made-up power and thus have to act within the limits of their constitutional mandate. Selinger maintains that thinking about legislatures through the lenses of constituent power both limits and strengthens their power: it limits legislatures because it clarifies their constituted nature, but it strengthens legislatures because it insulates them from the idea of an overarching sovereign will of the people.

This Critical Exchange aims to underline the conceptual and historical specificity of the idea of constituent power. Far from being just a synonym for sovereignty, it offers a specific way of interpreting the principle of popular power, one that ties its exercise to the fundamental institutions of the modern state. And when assessing their legitimacy through the idea of constituent power, some institutions are, as a result, strengthened in their relationship to the principle of popular power (constitutional courts and legislatures), while others invite a thorough questioning of their function within the constitutional state (referendums, federalism, and central banks). This proves that there is much to be gained from thinking about democratic politics through the idea of constituent power. Not only does it demand that we distinguish between different ways of conceptualizing the principle of popular power; but it also forces us to clarify how we assign democratic legitimacy to our institutions and why.
Lucia Rubinelli

Constitutional courts and amending constituent power

Constitution’s written liberal constitutions—the only ones I’m going to consider in the following remarks—are a set of rigid, entrenched legal norms concerning the structure of the government and the fundamental rights it must guarantee to the members of a political community. The well-known exceptions in this family are the customary constitution of the United Kingdom and the mix of written but flexible laws and unwritten conventions making up the constitution of New Zealand. Rigidity refers to the existence of complex legal procedures (more demanding than those used to enact ordinary laws and often super-majoritarian) to change the constitutional status quo, procedures, that include either at least part of the parliamentary opposition or more or less direct popular decisions. [6] It is important to emphasize that rigidity is only a legal quality of the fundamental laws of a country, and it is not equivalent to the stability of constitutional order. The latter depends on concrete, specific historical, political, and economic circumstances, so it is not surprising, given the political history of the country from the Revolution onward, that France had many more rigid constitutions since 1791 than the United Kingdom, which instead slowly changed over time its flexible customary constitutional order. [7]

It is even more relevant, given my focus, to distinguish the constituent power stricto sensu from the power to amend and change the constitution–the French doctrine speaks of original and derivative constituent power. The theory of constituent power, introduced in the continental European debate, notably by Sieyes and further developed by Carl Schmitt in his Theory of Constitution (1928), refers to a foundational moment, which marks a radical break with a previously existing (mostly colonial or monarchical) legal order. In liberal democratic representative regimes, constituent power entails popular participation in ratifying and enacting the new fundamental order of the political community delineated in the constitutional document. Constituent power supports it.

The pouvoir constituant dérivé is instead a constituted power, typically specified in the written rigid constitution, a concept that has rarely been the object of systematic investigation. [8] As said, a supermajority of the elected representatives normally exercises it either by a mix of representative and popular decision-making, sometimes via referendum. Constitutional courts, in their way, exercise a constitution-amending power (for the South African exception). [9] This is not the original constituent power in its radical version: courts modify the constitutional order by filling its gaps or by interpreting its principles and values, and I shall try to explain briefly why and how.

To understand such an unusual claim, i.e. that courts exercise a derived constituent power, we need to know that all written constitutions are inevitably ‘incomplete contracts’. Even the best and less short-sighted founding fathers cannot foresee all the questions, cases, and controversies that can arise under the constitution they write. This is true when the constitutional document is old and survived for a very long time, as in the American case. So, saying that a constitutional court is just ‘enforcing’ the constitution, when a case or a question emerges and the court is asked to adjudicate it, does not make much sense. It is implausible to argue that interpreting the constitution means simply looking back at the ‘original intent’ of the founders. It is a strange exercise to speculate about what the founders would have thought about questions unimaginable at the end of the eighteenth century (speaking of the US constitution), as is clear with what should be done about internet regulation, same-sex marriage, or Covid-19.

Instead, I will argue that constitutional courts act as derivative constituent powers by presenting two examples drawn from much more recent constitutions. The first has to do with the Italian republican charter enacted in 1948, and the second with the French constitution of the Fifth Republic.

Among the powers that the Constitution assigns to the Italian constitutional court, there is the adjudication of the so-called conflitti di attribuzione (conflicts of institutional competencies) among high state organs–notably the legislative, the executive, and the judiciary, or between the national government and the regions. A similar competence exists in the German (Organstreitigkeit, art. 93) and the Spanish constitutions. The Court is thus given the important task of defending the structure of divided power of any liberal constitution. When a conflict between the organs of a pluralistic authority emerges, the system needs a judge to avoid the derailing of the anti-monocratic authority established by the fundamental law.

On 19 October 1995, the Italian Senate voted a motion of non-confidence against attorney general Filippo Mancuso, who sued the upper house before the constitutional court for the violation of art. 94 of the Italian constitution, which regulates the process of the government’s investiture as a single body. Mancuso argued that the constitution speaks of a vote of confidence and no-confidence concerning the government as a collegial body and that a no-confidence vote against a single member of the government was unconstitutional, so that, in his opinion, the entire government should have resigned. In its decision of 18 January 1996 (Sentenza Corte Costituzionale 7, 1996), the court rejected the interpretation of the constitution presented by Mancuso and declared that the articles of the constitution concerning the government’s political accountability vis-à-vis the houses of the parliament did not exclude the vote of no-confidence addressed to a single member of the cabinet.

In such cases, it is unrealistic to claim that the court is merely implementing the constitution. Through an interpretation of constitutional articles concerning executive accountability (based on the history of parliamentarism in other European countries–even though this research is not mentioned explicitly in the court’s opinion), the judges were filling a gap in the constitutional text. They wrote a little extension of the fundamental law, responding to or supplementing the existent blind spot. In a limited, marginal sense they were amending or integrating the constitution–something that neither the parliament nor the minister would have been able to do, because an actor cannot be a judge in their trial, without destroying the structure of divided power in liberal constitutions, and establishing a monocratic sovereign state organ.

It may be noticed that even in the UK, where there is no written and rigid constitution, a court of justice—the supreme court—was recently asked to decide on a conflict between parliament and the prime minister, and it decided in favor of the merged doctrine of parliamentary sovereignty. This judgment shows that the sovereignty in question is not so absolute as to exclude a conflict between the parliament and the prime minister that may emerge and, thus, will be judged by an independent judicial body. [10]

The second example supporting my claim is the decision of the French Conseil constitutionnel of 15 January 1975 concerning the statute on interruption volontaire de grossesse (abortion) voted by the parliament but referred before its promulgation to the council by a minority of representatives hostile to it. [11]

The hybrid nature of the French constitutional council, which used to be a mix of a court of justice (as it largely is now) and a sort of an executive organ of the constitutional system (as in 1958) is the origin of a unique practice: the internal deliberations among the members of the council are recorded, and, as of 2008 the proceedings are publicly available–since the required 25 years have elapsed. The court upheld the Loi Veil, which legalized abortion. [12] The decision and the debate in the council are of special interest for a variety of reasons, among others the fact that in 1975, no member of the council expected that the transcript of the debate would have been made public. Here I shall focus only on the arguments of judge rapporteur François Goguel, which were accepted by the council. Goguel, a Catholic believer, declared himself to be personally against the norm approved by parliament, but he admitted to seeing no obstacle in the constitutional text as to the constitutionality of the statute, notably because the constitution said nothing about the question. [13] Here again, what is not forbidden by the fundamental law may be considered compatible with the hierarchy of norms it enshrines, provided that the court agrees with that compatibility. Therefore, we can safely say that, in this case, the decisions of the court integrated and expanded the constitution.

The constituent power of the courts is thus mostly based on a process of integration of the constitutional text. This integration is marginal because there needs to be no vehement opposition in public opinion and/or among the elected representatives. It thus follows that the type of amending power that lies in the hands of constitutional courts’ judges is incremental. This power depends on the cultural and political circumstances of each given society. By their decisions, courts may simultaneously preserve and refine the constitutional structure of a liberal regime and enlarge the understanding of the rights it is meant to guarantee. They cannot change the basic structure of the constitution, but they can marginally interpret and rewrite its content–for as long as they keep their relative independence vis-à-vis the political (democratically elected) actors.

Courts are certainly not all-powerful institutions. They only work thanks to the support of public opinion and acceptance by the elected representatives. As a counterexample, one can think of the constitutional courts of Hungary and Poland captured by the executive after the illiberal turn of those regimes, whose legitimacy is seriously contested. In liberal societies, based on the principle of divided power and its polyarchic structure, constitutional courts are actors exercising a limited, incremental derivative constitution-rewriting power.
Pasquale Pasquino

Constituent power and referendums

When the idea of constituent power is deployed in contemporary constitutional discourse, it is often associated with referendums. This is hardly surprising, for, in contemporary societies, referendums are the key mechanism for the formal involvement of the citizenry in the making of political decisions. Upon closer examination, however, the connections between referendums and constituent power are much more tenuous than what may otherwise appear. This is not to deny that the prevailing view rests on apparently strong grounds. On the one hand, referendums are historically related to the imperative mandate, and in the eighteenth and early nineteenth centuries, they frequently saw the imperative mandate as the means through which the constituent subject controlled the actions of those sitting in the constitution-making assemblies.

Although the theory of constituent power presupposes a representative form of government (i.e. a distinction between constituent and constituted authority), the democratic exercise of constituent power seems to require the type of direct popular involvement facilitated by a referendum. This contribution explores the connections and disconnections between constituent power and referendums from a theoretical perspective and the perspective of actual constitutional practice. On the theoretical front, it argues that while referendums cannot exhaust the nature of the constituent activity, they can play an important role in the exercise of constituent power. The practical implications of this view, my contribution shows, have been exemplified in the jurisprudence of the Colombian Constitutional Court.

Referendums are the main formal mechanism of direct democracy in societies whose size makes it impossible for the entire citizenry to assemble in a single law-making body. In theory, they allow the electorate to decide about specific political issues, and, in many, if not most, constitutional arrangements, those decisions are binding on all representative and governmental institutions. The institutionalization of the referendums is, in this sense, a democratic correction to representative democracy which, apart from the periodical vote to elect representatives, does not require any form of direct popular intervention in the making of political decisions. Referendums are typically (though not only) reserved for moments of constitutional change, times when the electorate is asked to allow a modification of the fundamental laws of the state. It is in those moments, and not during the adoption of ordinary laws or policies, that democratic principles seem to demand direct citizen involvement. If constituent power is understood as the popular power to create and change constitutions, and if referendums allow the electorate to ratify or reject a draft constitution or a proposed change to an existing one, then they seem to be the obvious mode of exercising constituent power in contemporary constitutional orders.

That is how the relationship between constituent power and referendums is understood by constitutional lawyers. This approach assumes wrongly that the ideal institutionalization of the exercise of constituent power would be direct democracy. The theory of constituent power is a creature of political representation: in a direct democracy, a system where all laws, including the fundamental ones, can be drafted and adopted by the entire citizenry, there is no need for the theory of constituent power, which is a theory about a separation between constituent (popular) and constituted (governmental) authority. If referendums are to be understood as a possible institutionalization of constituent activity, that they are a formal mechanism of direct democracy is not enough. Indeed, there may be other mechanisms that, because of their deliberative, participatory, or inclusive nature, may be more appropriate for the exercise of constituent power than a simple yes or no vote in a referendum (In the second part of my contribution I consider the reasons the traditional view, despite overstating the connections between constituent power and direct democracy, is right in attributing to referendums a key role in constituent activity).

Now, like constituent power, the institution of the referendum is also a creature of political representation. The raison d’être of referendums is the need to submit to the citizenry certain decisions that, because of their constitutional significance, should not be left solely in the hands of representatives. Seen from this perspective, referendums play a similar role to that assumed by the imperative mandate at different points long before the great revolutions of the eighteenth century. Before its almost universal abolition, the imperative mandate served as an important link between representatives and the voters who elected them. Those representatives are bound by citizens’ instructions, although in theory applicable to every kind of decision, usually gained special importance in constitutional change during the exercise of constituent power. [14] The imperative mandate appeared, in the eyes of some, as the means through which the citizens who sat in primary assemblies and town meetings could control and influence the conduct of delegates called to engage in the constituent activity. While the abolition of the imperative mandate meant citizens could not influence the actions of those delegates ex ante, the referendum allowed them to control their ex post. As Pedro de Vega has shown, in the Middle Ages, the word ‘referendum’ was used to refer to communications between delegates and their electors about issues that emerged before the assembly and that had not been specifically included in the former’s mandates. Delegates would express opinions on those issues, ad referendum, subject to the subsequent ratification of their constituents (1985). Despite these connections, the difference between the imperative mandate and the referendum (the first one taking the form of an ex ante instruction; the second one of a potential veto) has important implications for constitutional change in current legal systems.

Consider the participation of the electorate in constitutional reform, one instance in which contemporary constitutions require the direct participation of the electorate. In constitutional reform, the electorate does not act as a constitution-maker but as an institution of control. It does not create new constitutional forms or is even necessarily consulted about what those forms should be, but vetoes or confirms decisions about constitutional content made by others. Those others could take the form of an elected constitution-making body, a legislature acting through a special majority, an ordinary legislature, or even a non-elected commission of experts. The referendum will be subject to a set of legal procedures that limit in important ways the extent of popular participation (e.g. a yes or no vote, no formal deliberation), that may only identify as voters those individuals that had previously met certain more or less arbitrary eligibility criteria (e.g. criteria about age, residency), or that may give more weight to the votes of the minority (as any decision-rule other than 50% +1 would do).

Those kinds of procedural limits seem more consistent with an electorate playing the function of a state organ, of a constituted authority, than with a popular exercise of constituent power. The question then becomes whether the electorate, when it acts through a referendum, could ever be understood as exercising constituent power. I now turn to consider a plausible answer. Can we understand the electorate as more than a state organ playing a discreet function within a larger process of constitutional reform? Can it be (or should be) seen as a juridical manifestation of the constituent people? [15] Some constitutional theorists have explicitly considered these questions. Carl Schmitt, for example, maintained that ‘even the constitutional powers and competencies of the “people” the state citizens entitled to vote’ (such as the referendum and the initiative under Articles 73 and 76 of the Weimar Constitution), are not ‘powers of the sovereign people, who give themselves a constitution and engage in acts of the constitution-making power. They are, rather, competencies in the constitution’s context that are already provided’. [16] For Schmitt, if a referendum only allows the electorate to act according to a legally controlled process of constitutional reform, it cannot be a means for the exercise of constituent power. According to Schmitt’s understanding of the limits of the power of constitutional reform, this means that a constitutionally regulated referendum will not be enough for the legitimate alteration of the material constitution (i.e. the constitution’s fundamental content, which Schmitt called the ‘substance of the constitution’), something that falls under the exclusive jurisdiction of the constituent subject and that cannot be subject to determinate constitutional procedures. [17]

The Colombian Constitutional Court has embraced this view in a series of judgments. A democracy, the court has maintained, cannot be participatory unless the people can also appear as the bearer of the power of constitutional reform. [18] In Colombia, this was facilitated through what the court identified as the ‘constitutional referendum’ regulated by Articles 377 and 378 of the Constitution of 1991. But the court pointed out that including the referendum as part of the mechanism of constitutional reform was not equivalent to the establishment of a ‘pure direct democracy, not subject to judicial control’. [19] ‘The power of constitutional reform, even when it includes a referendum’, the court stated, ‘is the deed of neither the original constituent power nor of the sovereign people, but an expression of a juridical competency organized by the Constitution itself’. [20] For that reason, the court maintained, the impossibility of replacing the constitution always limits such a power. Otherwise, the power of constitutional reform would become equivalent to the original constituent power (Judgment, C-551/03 (n 49) para 40; the French Constitutional Council rejected this kind of approach in its decision no 62-20 DC, 6 November 1962). Some years later, the same court made this point even more expressly: ‘The referendum as a mechanism of constitutional reform is always a manifestation of the derived constituent power [i.e. the limited power of constitutional reform that has been delegated to the ordinary institutions of government] and not even the intervention of the electorate… has the sufficient juridical force to transform a referendum into a foundational, primary, or original constituent act’. [21]

We can identify the type of electoral acts examined in those judgments, as suggested by the court itself, as constitutional referendums. That is referendums through which a proposed constitutional change is approved or rejected as part of a procedure established by the constitutional amendment rule. But not all referendums are like that. Indeed, the Colombian Constitutional Court has distinguished between situations where the people, acting ‘outside of any normative channel, alters the constitution or give itself a new one’ and situations ‘where the citizenry acts as a constituted organ, and as a limited one’. [22] In the former scenario, the people act as the constituent power, and, in the latter, it operates as a constituted one. [23] Importantly, the court included within the latter type of situation those cases in which, ‘according to constitutional provisions, the people are convened to decide whether to call a national constituent assembly’. [24] That view is problematic because such a referendum would authorize an entity to replace the existing constitution or alter its material content. That it is convened according to the law does not seem to be a sufficient reason for depriving it of a constituent nature.

As Ernst-Wolfgang Böckenförde stated, there can indeed be a juridical distinction between ‘the people as an organ and the people as sovereign; however, the two cannot be separated as though they were two distinct and real entities: finally, they are the same “people”’ [25]. ‘ [A]nytime the people takes an active role as an organized entity,’ he added, ‘the unorganized people of the pouvoir constituant are also involved and present.’ [26]

Authorizing and ratification referendums, as long as they involve the alteration of the material constitution, should be understood as constituent referendums, i.e. instances in which the people exercise their constituent power directly. With a referendum calling for a constituent assembly allowed to adopt a new constitution (within or outside the established amendment rule), we could understand the electorate as commissioning that entity with the production of material constitutional content. That is an instance in which ‘the people’ act through the electorate and may set conditions to which a constitution-making body will be subject. Such conditions may include the creation of a specific type of constitutional content within a certain period. They may also require the submission of the new constitutional text to popular ratification. In that final referendum, the people, acting once again through the electorate, not only accept or reject a draft constitution but also confirm that its mandate has been respected.

To conclude, I hope to have shown that the relationship between constituent power and referendums is not as clear as it is sometimes thought. While there are important affinities between the institution of the referendum and the exercise of the power to create new constitutions, there are also significant tensions between them. These tensions emerge from the fact that a set of norms potentially inconsistent with the exercise of a truly popular constitution-making jurisdiction will normally regulate a referendum. Simultaneously, however, a referendum provides a means for the entire electorate to take part in the authorization of a constitution-making episode, as well as in the ratification or rejection of important constitutional changes. In such a context, I argued, referendums can be understood as a key part of the exercise of constituent power in contemporary societies, when a people, acting through the electorate, take part directly in the alteration of their country’s material constitution both by issuing a mandate for the creation of new constitutional content and by determining if such a mandate has been respected.
Joel I. Colón-Ríos

(Re-)Constituent power and federal change

The concept of constituent power revolves—not least because of its prominent role in French revolutionary thought—around at least two focal points, which endure although highly contested history. [27] On the one hand, constituent power is still frequently associated with political founding; on the other, many theorists continue to tie it to questions of popular sovereignty in unitary democracies. These emphases in the conceptualization of constituent power, however, divert attention away from constellations both more complicated and more common than the founding of unitary states.

We should examine the locus and legitimacy of constituent power not only at the moment of founding. Political orders can also substantially transform after their foundation in ways not projected by the founders and yet without undergoing a revolution. This raises the question of who allows and directs such changes: Where does re-constituent power, understood as political power affecting non-revolutionary but radical transformation beyond constitutional confine, live after the founding? I define re-constituent power—as I will elaborate further below—as different from amending power or pouvoir constituant constitué, in that its transformative power does not operate within the rules of the constitution, including the rules for a constitutional amendment. Re-constituent power is thus related to what Yaniv Roznai has called the sporadic ‘re-emergence of the primary constituent power’ popular power–but it emphasizes the potentially new configuration of the constituent subject in a situation of re-constitution. [28]

Concerning the second conceptual limitation, constituent power has been closely connected to the idea of a state made up through the will of one demos–even if this demos is potentially pluralist. But many modern democracies are constitutionally structured in political layers, resting on the political fusion and cooperation of multiple citizenries: they are federal, and they not only distribute power through a complex institutional structure. We often assume this structure to have been originally constituted by multiple collective actors. Federal polities comprise different spheres of rules, which significantly complicate the sharing and exertion of power–even when the making up populations are not thought of as separate peoples, let alone nations. This layering and sharing of power among multiple collectives also affect (re-)constituent power.

The dynamics of deep transformation engrained in federations concern both these aspects of constituent power—its continued importance in established institutional settings, and its complications in heterogeneous polities—and they raise questions that have so far remained unresolved: How can (re-)constituent power be in federal political orders? And how does this power relate to the territorial and political segmentation of the demos into sub-units, with both the federal and the regional levels involved in the democratic process?

From the vantage point of these questions, federal polities are an interesting and difficult area for identifying the locus and essence of constituent power, because here the ‘paradoxes’ of constituent power as the power to (re)constitute a political order, are intensified. [29] Does the power constitutive of federations coincide with the power that transforms them? Does, therefore, the founding constituent power makes up an ongoing constituent power? The chief interest in the following lies less in gauging the conceptual depths of constituent power through the lens of federalism, but in asking: what can the lens of constituent power contribute to our understanding of the complicated functioning and transformation of federal democracies?

Carl Schmitt, whose emphasis on the political decision concerning constituent power is well known, saw the fate of federal political orders as outside the control of political decision-makers. Federations, and particularly federal democracies, were bound to move almost automatically towards homogeneity–towards centralization up to the point of unitary statehood. [30] Even if we question this thesis of centralizing magnetism, Schmitt’s view succinctly highlights the dynamic character of federalism. Federalism, as an institutional framework, may carry the promise of stability and balance under often tumultuous circumstances, and high rigidity frequently marked federal constitutions–but most federations regularly undergo changes and conflictual dynamics of varying magnitude.

Some of these dynamics are regular and expected elements of the political and constitution-amending process–for instance, the drawn-out negotiations and compromises between levels of government and their respective executives and legislatures, or the re-setting of boundaries on competencies, for which often constitutional court decisions are necessary. [31] These balancing acts within a multi-layered, complex polity have been extensively analyzed. [32]

But federations are prone to too many more fundamental transformations, which raise the question of constituent power. Discussing radical centralization, Schmitt has named just one direction such transformation processes can take. The shift from politically decentralized to centralized statehood can—depending on the political system—occur through legislative or judicial routes, but also through more informal redistributive effects. But federations also frequently expand or contract in terms of membership. Finally, what has been called ‘federal failure’ can also be regarded more neutrally as disintegration–a process requiring, like other types of deep federal transformation, collective authorization to be democratically legitimated. [33] All these types of transformation can be considered changes to the polity’s essence, in the sense that they shift its composition, power distribution, and political rules.

Although in some existing federations, the modalities for federal transformation are prescribed by the constitution [34], only a very few countries regulate all the deep and lasting transformation. [35] In Germany, for instance, the overall federal structure is an unalterable element of the constitution, [36] but the competencies of both federal centers and states can be—and have been—rearranged through a constitutional amendment; as for the accession of new member states, the Basic Law until 1990 contained only an enlargement provision. The so-called ‘Europe-article’ supplanted article 23 (1949), which allows for transferring competencies to the supranational level—itself a provision for a different federation-transforming act. Similarly, though much more elaborated, procedures exist in the EU’s treaty framework—but here, as in many other federal contexts, both regulated and unregulated modes of federal transformation co-exist. In the EU, a tightly regulated accession process accompanies unregulated centralization over time towards a tightly integrated federal order on the one hand, as criticized by Weile [37] on the other. [38] In the United States, increasing centralization has been continuing almost since its founding–propelled not only by Supreme Court decisions but also resource redistribution, population movement to the coasts, and, of course, the Civil War.

Often, therefore, fundamental changes in the essence of a federation are not provided for in its constitution but take place. This practice of informal or unregulated transformation concerns not only drastic centralization but also changes in the territory and the number of sub-units. Not only do some federal constitutions not provide for enlargement, but very few provide for secession or expulsion–a fact that does not prevent these transformations, as the example of the separation of Singapore from the Malaysian Federation in 1965 shows. [39]

It is here that a key tension becomes apparent. Federations are oftentimes designed to ensure stability under conditions of diversity, conflict, and strong centrifugal forces, and this desire for stability becomes manifest in a certain constitutional rigidity. [40] This very rigidity, however, clashes with a key characteristic of federalism–its dynamic character. This dynamism arises out of the multiplicity of territorially entrenched collective actors and their political goals. It may have found federal arrangements hoping to avoid fundamental re-constitution, but the conflicts over power and particularly around the terms of membership—both between federal and regional levels and among the sub-units—build pressure toward re-arrangement. This characteristically federal dynamism can amount to a fundamental restructuring of the overall polity: its extent, its governing rules, and its self-conception.

Since this tendency characterizes federations towards deep structural transformation, the question arises of constituent power within established federations. How is constituent power embodied in federal states–what makes up it, who exerts it, and when can it be deemed democratically legitimate? Here, three points are of particular relevance.

First, any consideration of constituent power in federations needs to determine the threshold beyond which federal transformation amounts to re-constituent action. Surely, constitutional amendments—as inbuilt and pre-regulated elements of the political system—are below this threshold of constituent power. Even if they produce fundamental changes—such as an increase of competencies for the federal center or new rules for the admission of new members to the federation—they are not operating outside the existing political rulebook but are part of the amending power or pouvoir constituant constitué provided for by the constitutional framers.

However, if federations transform short of full-fledged revolution yet fundamental and outside the bounds of the constituted order, it is plausible to speak of re-constituent action. As explained earlier, because of efforts for federal stability, many constitutions do not provide for the eventualities of expansion, secession, or expulsion–thus leaving room for the not-too-unlikely case of extra-constitutional transformation. If the constitution does not cover these eventualities of federal re-arrangement, they alter the constitutionally established order. Importantly, even these transformations do not operate wholly outside the existing rulebook but are to some extent pre-structured by it. With Singapore’s expulsion from Malaysia, for instance, both the federal parliament and the federally elected (though mainland-dominated) executive claimed the authority to move against the recalcitrant member state. Even if re-constituent power, therefore, is not simply a pre-constituted amending power, it is related to the powers made up through the federal foundation: the latter creates the political preconditions for further transformative action.6.

This leads to a second point: the characteristically non-monolithic nature of constituent action in federal constellations. Here, the link between constituent and re-constituent power is of particular relevance. Especially in what Alfred Stepan has called the ‘coming-together’-type of the federation [41]—a federation formed through the joining of several political entities—the federal structure itself results from collective decision-making among multiple polities. For an understanding of constituent power that emphasizes its close connection with popular sovereignty, the split character of the federal demos is especially relevant. This is because of the internally pluralist structure of constituent action. In a polity defining itself through territorial segmentation, the likelihood that re-constituent action—be it direct popular action or action relying on popular approval—emanates from complex coalitions is considerable; and this complexity can grow after the federal funding if multi-level pluralism is combined with the pluralism of democratic society. This diagnosis of twofold pluralism runs directly counters Schmitt’s description of federal democracy, the key characteristic of which is an inevitable tendency toward homogeneity. (Re-)Constituent power in democratic federations is thus shaped by its multi-layered and pluralist environment. This also means that there is a high threshold for constituent action to be democratically legitimate since a plurality of groups and actors must be considered in unstructured processes of deep transformation. Centralization, expansion, or expulsion at the initiative of actors from only one sub-unit, or only the federal level, would hardly satisfy the legitimacy requirements associated with popular sovereignty.

Finally, this high legitimating threshold holds the promise of a substantial legitimacy of (re-)constituent power. As Peter Niesen has argued concerning the federal structure of Europe, the mechanism of a pouvoir constituant mixte–a term applied by Jürgen Habermas to the case of the EU [42]–, in which each citizen exerts power both through her member state and the European parliament, facilitates supranational legitimacy. This theorization of mixed constituent power is, according to Niesen, not primarily concerned with constitutional transition, but it considers its operation beyond the foundational moment and potentially throughout the existence of the federal arrangement. [43]

More radically transformative change, in the space between the founding and revolutionary politics, can gain substantive legitimacy thanks to the peculiar structure of federalism. Ideally, federal structures cannot secure civic participation and accountability on multiple levels: they also prepare citizens to consider one political arena for engaging in transformative political action. (Re)constituent power in federal constellations can therefore draw from over one source of democratic legitimacy, because of the dual role of each citizen as a citizen both of a sub-unit and the federal polity–a role firmly defined for ‘regular’ political processes through the constitution, but also relevant for moments of federal re-ordering.

For federations, therefore, the answer to the question of legitimate substantive change outside of formal constitutional provisions is significant because of their tendency toward such transformations—and because of the pluralist nature of democratic authority entrenched in their structure. The language of constituent power can illuminate these dynamics if it eases its focus on political founding and on the territorial unity of the demos—and considers the complicated ways in which the original constituent power shapes later constituent action, without firmly predetermining it. As federal histories show, path-breaking foundational moments can, in a risky balancing act, both stabilize a polity and leave open significant space for political change.
Eva Marlene Hausteiner

The central bank and the constituent power

Can central banks be institutions of the constituent power? If so, what does this mean in terms of their political role and their legitimacy? In tandem with the increasing involvement of politically independent central banks in governing our economic lives, the question of their democratic foundations and legitimacy arises. This is because central bank legitimacy fits uneasily within the mechanisms of ordinary democratic politics. Elections are rarely if ever, decided on questions of monetary policy, and it is often unclear what power elected politicians have over central banks. The question of the relationship between the central bank and ‘the people’ is therefore of some importance.

This does not have to involve the question of the constituent power, but it may. Regarding the European Central Bank (ECB)—one of the few central banks in the world that can meaningfully, albeit controversially, be considered an institution of the constituent power—this contribution discusses the consequences of thinking about central banks through the lens of constituent power. While reference to the constituent power promises to establish a firm democratic foundation for the central bank, the elevation of the central bank’s mandate and authority to the constitutional level comes with certain problems. In particular, it risks rendering the mandate of the central bank too rigid to be practical in crises, prompting the politics of suspending or altering the mandate in an emergency. This, of course, is often anything but democratic.

Most central banks are not institutions of constituent power. Their position within the modern state has evolved and has been entirely elite-driven. They have constituted powers, of course, but their authority is derived from other constituted powers that can withdraw or alter them at will. They are products of secondary law, not the primary law of the constitution, and were created by ordinary political representatives working within constituted legislatures, not ‘the people/nation’ or its extraordinary representatives in revolutions or constituent assemblies. They could be called ‘secondary’ constituted powers as opposed to the ‘primary’ constituted powers that create them (typically legislatures).

Some central banks, however, have been created in extraordinary political moments. The post-World War II German central bank, for instance, was created a year before the Basic Law constituted the Federal Republic in 1949, and it enjoyed an extraordinary position in the life of the West German state. Following its creation, the Bundesbank quickly became a symbol of a break with Germany’s past and presented itself as a bulwark against the dangerous excesses of politics. Through actively cultivating public opinion in its favor, the Bundesbank successfully established itself as an independent power within the state on a par with the legislature and government. In conflicts with the government, the Bundesbank appealed to ‘the people’, and, more often than not, it carried the day. [44] The Bundesbank, however, was formally still a secondary constituted power, as the Bundestag held the right to alter or abolish it through ordinary legislation. If there was a connection between the German people and the Bundesbank, it was informal–but no less effective for that.

When the European Central Bank was created, the Bundesbank was the primary source of inspiration. Like the Bundesbank, the ECB was created at a moment that marked a transformational break from the past. Like the Bundesbank, the ECB was to be independent of political instruction. Unlike the Bundesbank, however, the ECB’s mandate and institutional status were fixed in primary law, the Maastricht Treaty. This means that no constituted power may alter or abolish the ECB through ordinary legislation. Its acts cannot be vetoed, and it cannot, in principle, be compelled to do anything against its will. In matters about its Treaty mandate, it can legislate without the involvement of other constituted bodies and execute its will throughout the territory of the Eurozone without the involvement of Member State authorities. The only check on the ECB’s powers is judicial: it must act under the mandate given to it by the Treaty. Such powers, combined with independence from political authorities, make the ECB unique among central banks. The question is whether it is an institution of constituent power.

The answer to this question depends to a certain extent on how the constituent power is conceptualized. In Dictatorship, Carl Schmitt [45], referring to Sieyès, defines the constituent power as the primordial force of any state… From the infinite, incomprehensible abyss of the force [Macht] of the pouvoir constituant, new forms emerge incessantly, which it can destroy and in which its power is never limited for good. It can be arbitrarily. The content of the willing has always the same legal value as the content of a constitutional definition. In this definition, there is nothing inherent in the idea of the constituent power that prevents the possibility of central banks being institutions of the constituent power. Nothing can prevent the nation/people from creating whatever constitutional forms it desires. Thus, while central banks are not ordinarily institutions of constituent power, it is a theoretical possibility.

Possibility, of course, is not actuality, and there are some difficulties associated with the concept of constituent power in the European Union. One of these is that the treaties were not products of constituent assemblies (except the failed Constitutional Treaty), but intergovernmental conferences. The primary law of the EU is thus not a product of formless constituent power, but an agreement between several constituted powers. Again, however, the theory of the constituent power, as planned by the Abbé Sieyès, can allow for this through the concept of extraordinary representation. [46] What distinguishes the adoption of the EU treaties from other international treaties is that it transforms the political status of the signatories—‘from nation-states to the Member States’ [47]—as well as how they govern themselves. [48] In the Eurozone, this is clear, as the creation of the ECB introduced a transnational power that can implement its will within the territories of the member states without involving national authorities. We can thus see the ratification of the Maastricht Treaty as an extraordinary political act that profoundly altered the constitutional order of both the EU and its member states. The ordinary representatives that signed (heads of states and governments) and ratified the Treaty (in most cases, parliaments) acted as extraordinary representatives.

However, even if the concept of extraordinary representation is accepted, the EU cannot be characterized as the product of the will of a single constituent of power. Jürgen Habermas [49] has sought to overcome this problem by conceiving of the treaties as products of a pouvoir constituant mixte that comprises the citizens of Europe in a dual capacity: as citizens of the EU and their respective member states. Notwithstanding the problem that citizenship is of course a constituted legal status, this highlights that if the concept of constituent power is to make sense in the EU context, it must be in the plural. The ECB strikes a similar note in describing its foundations of authority: ‘It was the sovereign decision of the peoples of Europe (through their elected representatives) to transfer the competency for monetary policy and the other tasks enumerated in the Treaty to a newly created European body, and to endow it with independence from political interference’. The ECB strikes a chord similar to that of legal scholars such as Dieted Grimm [50] and Miguel Poiares Maduro [51], who argue that the EU treaties are attributed to the peoples of Europe, not the governments or parliaments of the member states. In this account, the ECB and the EU derive their right to govern from the same source as the member states themselves. Elected representatives have conveyed the will of the European peoples, but it is the will that matters, not how it is represented.

One can dispute whether the ECB was ‘really’ the will of the people. Few people were asked, and the German Chancellor Helmut Kohl, later admitted that in forcing Germany’s adoption of the euro, he acted as a dictator. [52] While this may disqualify the ECB’s claim to be a product of the will of the people, it does not mean that the ECB’s public law does not operate on the assumption that it is. The ECB’s extraordinary powers and its independence in exercising them have to be attributed to the constituent power of the people. That there are multiple constituent powers involved, however, raises certain problems.

The ECB takes the idea of central bank independence to its extreme conclusion. Through the effective constitutionalization of the ECB’s price stability mandate (art. 127 TFEU) and independence from political actors at both the European and Member State levels (art. 130 TFEU), the ECB derives its right to govern monetary affairs from primary law. No constituted power can alter its status or mandate through ordinary legislation. This is intended to insulate it from political pressures that might compromise its single-minded pursuit of price stability. In principle, a new ‘sovereign decision can alter or withdraw the ECB and its powers only by the peoples of Europe’. This means that unless the constituent power of any of the member state peoples is abrogated, leaving them no longer a people in the legal-political sense, all hold veto power over any change. The mandate of the ECB is potentially even more rigid, and thus inherently conservative than that of institutions subject only to a single constituent of power.

The ECB’s independence means that no constituted of powers can hold the ECB accountable for its acts and omissions. The ECB must ‘report’ to other constituted powers at the European level (art. 284(3) TFEU), but these institutions have no means of punishing it if they think it is failing its obligations. The ECB’s ‘input legitimacy’ is thus limited to the founding moment, and it is, through its ‘output legitimacy’ (informally) accountable only to the peoples who gave it its mandate.

The ECB’s constitutional status also reflects Sieyès’ principle that ‘ [n]o type of delegated power can alter the conditions of its delegation’. [53] Just as no other constituted power can alter the ECB, so it cannot alter its mandate. It is thereby controlled by law and judicial review alone. It is part of a system of checks and balances that are supposed to ensure that its governmental discretion is constrained by ‘a clear and limited mandate’ that it cannot control itself.[54] This ‘clearly defined mandate’, according to the ECB, ‘lies at the very heart of the… “contract” between the people and the independent central bank’. It is an institution the founding act placed outside the ordinary political process whose mandate, and the basic principles and values according.

The practical and democratic consequences of the ECB’s constitutional position are wide-ranging. In ordinary times, it entails that the mandate of the central bank is almost impossible to adjust under changing macroeconomic values. Attributing the central bank’s mandate to the constituent power attaches an inherently conservative bias to monetary policy, which at the same time constrains what member state authorities can do in terms of macroeconomic policymaking. The democratic legitimacy of this arrangement is questionable. It demands, at least, a strong popular attachment to the aim that the central bank pursues (with the ECB: price stability).

The emergency raises further problems. The rigidity associated with the mandate in ordinary times is, in principle, carried over into the emergency. The central bank’s policymaking flexibility to address the crisis is thereby limited. The problem arises precisely because no constituted authority is empowered to alter, adjust, or suspend the mandate. It is fixed between constituent moments. In a crisis, however, the restrictions of the mandate may threaten to exacerbate the crisis and prevent an effective response to it. The central bank faces the age-old dilemma of emergency politics: honor the law but risk undermining the existence of the constituted order, or act beyond the mandate but violate the constitution. This was precisely what happened during the Eurozone crisis, which was understood as an existential crisis for the euro. At the peak of the crisis, the ECB famously stepped in to do ‘whatever it takes’ to rescue the euro. However, the acts that put this promise into practice—the so-called outright monetary transactions program and the public sector purchases program—violated one of the most fundamental principles of the ECB’s mandate (the art. 127 TFEU ban on monetary financing) and radically transformed and extended the powers of the ECB and its involvement in governing the Eurozone.

Because of its independence, it involved no political authorities in deciding on the ECB’s emergency political acts. There may, of course, have been supporting from governments across the Eurozone, but this was informal and ‘behind the scenes’. The ECB carries the sole responsibility for acts that transformed the constitutional construction of the Eurozone by turning the ECB into a lender of last resort for the member states. [55] We may see this as a welcome development, but in introducing it, the ECB itself effectively acted as an extraordinary representative of the constituent power. Silence may then interpret as a form of ‘acclamation of the absence of effective revolt against its acts’ by the European people, in the name of whom the ECB now claims to act. [56]

This points to the problem of constructing the central bank as an institution of constituent power. The institutionalization of the central bank’s mandate, in principle, restricts the flexibility of a central bank in dealing with unforeseen circumstances because there are no institutionalized means of authorizing (or punishing) novel approaches to, or objectives for, monetary policy. The central bank as an institution of the constituent power is (supposed to be) an inherently conservative power between moments of extraordinary politics. When the mandate proves untenable, however, the absence of institutionalized means of altering or suspending it means that the question of how to alter the mandate becomes opaque and inaccessible to democratic politics and contestation, as it did in the Eurozone crisis. Then, the case of the ECB as an institution of the constituent power highlights the danger that rigid institutions of the constituent power present to meaningful democratic politics.
Hjalte Lokdam

Constituent Power and the legislature

There is a strong case to be made that the entire purpose of the idea of constituent power was to limit the power of legislative assemblies. By the time Sieyès gave his famous account of constituent power in What is the Third Estate? There was already widespread agreement about what one might do to limit the power of the executive. First, ensure that the legislature possessed the power of the purse, making the executive financially dependent on the legislature. Second, give the legislature the power of impeachment, so that it could remove executive officials who violated the law. Finally, if these two first steps were insufficient, strictly separate executive and legislative officials so that the executive could not intervene in the legislative process at all.

But the question of how to limit the power of the legislature was more difficult. An executive capable of regularly checking the legislature was a frightening prospect and one that would inevitably violate the separation of powers. This would also introduce the prospect of endless stalemate and gridlock, a danger that might equally arise from having a second legislative chamber. As for the people themselves directly controlling legislative representatives through binding mandates, this would make it impossible for the legislature to serve as a space for rational deliberation.

Sieyès’ idea of constituent power was a way out of this bind. It was a strategy for taming the legislature that did not require mandates, a powerful executive, a senate, or a house of lords. Instead of being directly checked and controlled by any of these other agents, it would make the powers of the legislature strictly subject to a constitution that it could not change or amend. The constitution could only be changed or amended through an entirely different process that was separate from the normal process of passing legislation, and which ideally would involve an entirely different representative body. Sieyès declared to the French National Assembly:

We have as a fundamental and constitutional principle that the ordinary legislature cannot exercise the constituent power…the ordinary National Assembly will not be more than a legislative assembly. It will be forbidden from ever touching any part of the Constitution. When it will be necessary to review and reform some part, it is to be done by an express Convention, limited to this unique object, that the Nation will decree the changes that appear to it useful to make to the Constitution. [57]

Limited in this way by a constitution, and unable to exercise the constituent power, the legislative assembly would be incapable of infringing on the rights of citizens.

These reflections on the origins of the concept of constituent power might lead one to suppose that this concept would be of little value for thinking about legislatures in contemporary politics. After all, most legislative assemblies today are limited–whether through a written constitution that it is beyond the power of the legislature to change, as Sieyès proposed, or through the sort of checks that he opposed. Yet I want to suggest that this is not the complete story. If the constituent power were to become widely accepted as the grounds of political authority, the power and prominence of legislatures would be likely to radically increase.

If constituent power was originally a way to tame the power of the legislature, it also raised the practice of the legislature, the practice of representatives deciding deliberation and parliamentary procedure, to new heights of importance. As Jack Rakove noted about the constitutional convention that wrote the United States Constitution in 1787, ‘the politics of the Convention resemble that of any legislative body, and its votes become grist for the fine-milling techniques of roll-call analysis that are commonly used to explain decision-making in Congress’. The state assemblies that ratified the Constitution resembled legislative bodies even more than the original Convention did–and this is even more true of the French National Assembly which, to Sieyès’ dismay, was forced to engage in actions that went well beyond the limited role of an ideal constituent assembly. This is a trend that has lasted throughout the modern era: the Weimar National Assembly of 1919 and the Indian Constituent Assembly were among the many instances of large representative bodies exercising a function for constituent power.

According to Sieyès, deliberation by a group of representatives was essential to carrying out the constituent power and planning a constitution. A constitution must be a national act, which is made in the general interest. Yet the general interest was not obvious or given in advance. It was necessarily a composite of countless smaller particular interests. The only way they could achieve the general interest was through a consensus enacted by deliberation:

In every deliberation, there is a kind of problem to be solved. This is to know what the general interest would prescribe. When the discussion begins, it is not possible to identify the direction it will take to reach the discovery with certainty… hence the clash and coincidence of opinions…. All these individual interests have to be allowed to jostle and press against one another, to take hold of the question from one point of view, then another, each trying to push it according to its strength towards some projected goal. In this trial, they will separate views that are useful and those that are harmful to one another. Some will fall while others will maintain their momentum and will balance one another until changed and purified by their reciprocal interaction, they will end up becoming reconciled with one another… just as in the physical universe a single more powerful movement can comprise a multitude of opposing forces. [58]

Sieyès’ use of the concept of constituent power and his opposition to the idea of popular sovereignty are related to this approach to achieving the general interest. Whereas the concept of popular sovereignty makes the will of the people, usually as evinced by a plebiscite, the underlying source of legitimacy for a constitution, the concept of constituent power makes creating a constitution one particular task or function, which is to be carried out by representatives like other tasks or functions. This is difficult to justify unless one thinks that creating a constitution is an act that requires bringing together the representatives of different interests and perspectives who can decide on the general interest.

Although the convention that exercises the constituent power is not the normal legislative assembly, it is inevitably a body with some resemblance to a legislative assembly, and which deliberates somewhat similarly. And although the normal legislative assembly does not exercise the constituent power, it somehow approximates the sort of political deliberation that occurs in the act of constitutional founding. The various interests and opinions that go into a constituent assembly are unlikely to disappear–they are likely to also be represented in the normal legislature, meaning there will be some continuity between the debates in the constituent assembly and normal legislative debates.

According to the general idea of popular sovereignty, the people which rule delegate power to different political actors—executive, legislative and judicial officials—none of which can claim to speak for the people definitively. However, it is the executive that expresses the best claim to represent the people, since the choice of a president or prime minister comes closest to being a decision in which the entire nation is involved.

If constituent power was to become widely accepted as the grounds of constitutional legitimacy, this situation might change radically. It would remain the case that no ordinary power—executive, legislative or judicial—could claim to speak for the people definitively. Yet the legislature would arguably have a better claim to do so than the other powers. It alone among the constituted powers can plausibly attempt to achieve a ‘general interest’, since it is the only constituted power that allows a range of ‘individual interests… to jostle and press against one another, to take hold of the question from one point of view, then another, each trying to push it according to its strength towards some projected goal’. [59]

The concept of constituent power would alter the relationship between the legislature and the people no less radically. It is easy to presume, when thinking in terms of popular sovereignty, that the people are simply the masters of their representatives–after all, it is the people who possess sovereignty, and their representatives are merely those delegated by them to carry out tasks they wish. The concept of constituent power renders this relationship significantly more complex since it denies that the people have the ultimate authority that goes with sovereignty. Put another way: the electorate that chooses the members of the legislature is itself a made-up power. It is not before constituted institutions, as we might think a sovereign people is but is constituted like them through the constitution. The selection of representatives to the legislature is merely one moment in the process of law-making, accomplished by one constituted power among several. It is not a moment that reveals the sovereign will of the people. If Sieyès sought, through his concept of constituent power, to limit the power of the legislature, he also limited the claim to the power of the electorate, and thus in another way preserved autonomy for the legislature that is harder to justify in a system based on popular sovereignty.

This contribution has been a thought experiment. If we were to rethink the foundations of political legitimacy in terms of constituent power rather than popular sovereignty, where might it lead concerning the role of the legislature? And the somewhat unexpected conclusion, given Sieyès’ intention, is that this could very well lead to legislatures that are more prominent and more autonomous of the electorate. Yet I suspect that this is also why constituent power is unlikely to become our dominant political conception soon. In her important recent book, Constituent Power: A History, Lucia Rubinelli [60] has documented how Sieyès’ distinction between constituent power and sovereignty was lost in the twentieth century. Since Carl Schmitt, constituent power has been increasingly interpreted as no different from sovereignty. But we might ask whether this is because the sort of politics that constituent power tended toward has become increasingly unrealistic. That this concept is still part of our political language, and that constitutional conventions remain an important institution, suggests that we should not entirely discount constituent power and the politics Sieyès envisioned either.
Will Selinger

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[1] Jaume, L. (1989) Le discours jacobin et la démocratie. Paris: Fayard.

[2] Rubinelli, L. (2020) Constituent Power. A History. Cambridge: Cambridge University Press.

[3] Sieyès, E. (2014) What is the third estate? In: O. Lembcke and F. Weber (eds.) Emmanuel Joseph Sieyès: The Essential Political Writings (pp. 43–117). Brill: Leiden.

[4] Rubinelli, L. (2020) Constituent Power. A History. Cambridge: Cambridge University Press.

[5] Colón-Ríos, J. (2020) Constituent Power and the Law. Oxford: Oxford University Press.

[6] Albert, R. (2014) The Structure of Constitutional Amendment Rules. 49 Wake Forest Law Review 913 (2014), Boston College Law School Legal Studies Research Paper No. 326.
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Report on Constitutional Amendment adopted by the Venice Commission at its 81st Plenary Session (Venice, 11-12 December 2009), viewed 21 December 2020, https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2010)001-e.
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[7] Bryce, J. (1901) Flexible and Rigid Constitution, Studies in History and Jurisprudence. Oxford: Clarendon Press.
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[10] Miller (Appellant) v The Prime Minister (Respondent), (2019) Supreme Court, viewed 21 December 2020, https://www.supremecourt.uk/cases/uksc-2019-0192.html.

[11] This one was the first case of a saisi parlementaire (the ex-ante referral by at least 60 members of the Parliament) introduced in France by the constitutional reform of 1974.

[12] Mathieu, B., et al. (2009) Les grandes délibérations du Conseil constitutionnel 1958–1983. Paris: Dalloz.

[13] Notice that the Council deciding for the compatibility was siding with the majority of the Parliament, whereas the public opinion was divided: 48% were favorable to abortion.

[14] Wood, G. (1998) The Creation of the American Republic: 1776–1787. Chapel Hill and London: The University of North Carolina Press.

[15] Colón-Ríos, J. (2020) Constituent Power and the Law. Oxford: Oxford University Press.

[16] Schmitt, C. (2008) Constitutional Theory. Durham: Duke University Press.

[17] Idem 77-79.

[18] Idem.

[19] Colombian Constitutional Court, Judgment, C-551/03.

[20] Id.

[21] Colombian Constitutional Court, Judgment C-141/10.

[22] Id.

[23] Colombian Constitutional Court, Judgment C-180/07.

[24] Idem.

[25] Böckenförde, E.W. (2017) Constitutional and Political Theory: Selected Writings. In: M. Künkler, T. Stein, (eds.). Oxford: Oxford University Press.

[26] Idem.

[27] Rubinelli, L. (2020) Constituent Power. A History. Cambridge: Cambridge University Press.

[28] Roznai, Y. (2017) Amendment power, constituent power, and popular sovereignty. In: R. Albert (ed.) The Foundations and Traditions of Constitutional Amendment (pp. 23–49). London: Hart Publishing.

[29] Roznai, Y. (2017) Amendment power, constituent power, and popular sovereignty. In: R. Albert (ed.) The Foundations and Traditions of Constitutional Amendment (pp. 23–49). London: Hart Publishing.

[30] Schmitt, C. (1928) Verfassungslehre. Berlin: Duncker & Humblot.
Schmitt uses the category of Bund instead of Föderation for federal political orders, which extend beyond statehood and include international federal orders of a lasting and constitutionalized kind.

[31] Bednar, J., Eskridge, W.N. and Ferejohn, J. (2010) A political theory of federalism. In: J. Ferejohn, J.N. Rakove, and J. Riley (eds.) Constitutional Culture and Demcoratic Rule (pp. 223–268). Cambridge: Cambridge University Press.

[32] Benz, A. and Broschek, J. (2013) Federal Dynamics: Continuity, Change, and the Varieties of Federalism. Oxford: Oxford University Press.

[33] Franck, T.N. (1968) Why Federations Fail. An Inquiry into the Requisites for Successful Federation. New York: New York University Press.
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[34] Aroney, N. (2017) Constituent power and the constituent states: Towards a theory of the amendment of federal constitutions. Jus Politicum: Revue de droit politique 17: 5–31.

[35] As Nicholas Aroney has shown, a constitutional amendment in federations often requires only a majority decision, not unanimity – which may raise questions on the legitimacy of such pre-regulated transformations. The Swiss constitution, in contrast, requires a popular referendum for an amendment to the constitution.

[36] The federal order could only be abolished through revolution – or through the resolution on a new constitution, the procedural pathway towards which is not elaborated on in the relevant article 146 of the Basic Law.

[37] Weiler, J.H.H. (1991) The Transformation of Europe. Yale Law Journal 100(8): 2403–2483.

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[41] Stepan, A. (1999) Federalism and democracy: Beyond the US model. Journal of Democracy, 10(4): 19–34.

[42] First substantiated by Anne Peters, the idea of a pouvoir constituant mixte has been applied by Habermas to the EU constellation of a dual role of all EU citizens in the legitimatory process:
Habermas, J. (2011) Die Krise der Europäischen Union im Lichte einer Konstitutionalisierung des Völkerrechts. Ein Essay zur Verfassung Europas. In: J. Habermas, Zur Verfassung Europas. Berlin: Suhrkamp.

[43] Niesen, P. (2016) Der Pouvoir Constituant Mixte als Theorie der Föderation. In: E.M. Hausteiner (ed.) Föderalismen. Modelle jenseits des Bundesstaates (pp. 209–234). Nomos: Baden-Baden.

[44] Mee, S. (2019) Central Bank Independence and the Legacy of the German Past. Cambridge: Cambridge University Press.

[45] Schmitt, C. (2014) Dictatorship: From the Origin of the Modern Concept of Sovereignty to Proletarian Class Struggle. Cambridge: Polity Press.

[46] Sieyès, E. (2014) What is the third estate? In: O. Lembcke and F. Weber (eds.) Emmanuel Joseph Sieyès: The Essential Political Writings (pp. 43–117). Brill: Leiden.

[47] Bickerton, C.J. (2012) European Integration: From Nation-States to Member States. Oxford: Oxford University Press.

[48] Larsen, S. (2021) The Theory of the Federation and the European Union. Oxford: Oxford University Press.

[49] Habermas, J. (2012) The Crisis of the European Union: A Response. Cambridge: Polity Press.

[50] Grimm, D. (2015) Sovereignty in the European Union. In: J. Van der Walt and J. Ellsworth (eds.) Constitutional Sovereignty and Social Solidarity in Europe (pp. 275–292). London: Bloomsbury/Nomos.

[51] Maduro, M.P. (2008) Opinion of Advocate General Poiares Maduro in Kadi. CJEU.

[52] Paul, J.P. (2010) Bilanz Einer Gescheiterten Kommunikation—Fallstudien Zur Deutschen Entstehungsgeschichte Des Euro Und Ihrer Demokratietheoretischen Qualität. PhD Thesis, Frankfurt: Johann Wolfgang Goethe-Universität.

[53] Sieyès, E. (2014) What is the third estate? In: O. Lembcke and F. Weber (eds.) Emmanuel Joseph Sieyès: The Essential Political Writings (pp. 43–117). Brill: Leiden.

[54] Issing, O. (2002) Should We Have Faith in Central Banks? London: The Institute of Economic Affairs.

[55] De Grauwe, P. (2013) The European Central Bank as Lender of last resort in the government bond markets. CESifo Economic Studies 59(3): 520–535.
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[56] Lokdam, H. (2020) ‘We Serve the People of Europe’: Reimagining the ECB’s Political Master in the Wake of Its Emergency Politics. JCMS: Journal of Common Market Studie 58(4): 978–998.

[57] Sieyès, E. (1789) Dire de l’abbé Sieyès, sur la question du Veto royal, à la séance du 7 septembre 1789. Paris: Chez Badouin.

[58] Sieyès, E. Views of the executive means available to the representatives of France in 1789. In: Sonenscher, M. (ed). Political Writings: Including the Debate between Sieyès and Tom Paine. Indianapolis: Hackett.

[59] Id.

[60] Rubinelli, L. (2020) Constituent Power. A History. Cambridge: Cambridge University Press

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