The theory (and practice) of constituent power

5    The Theory (and Practice) of Constituent Power

The constitutionalism–democracy dilemma – the idea that constitutionalism and democracy are in tension (or in conflict) with each other – has been the object of judicial treatment in several cases which, in one way or another, touched upon the very basis of the juridical orders in question. In North America, one of these cases is the Reference re Secession of Quebec, where the Supreme Court of Canada considered the question of the unilateral secession of its second most populous province.¹ In an attempt to balance democratic and constitutional principles, the Court held that the Canadian Constitution, which does not contain a provision allowing provinces to secede from Canada, could not be legitimately circumvented even if a majority of Québécois voted in favour of secession. According to the Court, the Canadian conception of democracy is not a mere system of majority rule but, taken in conjunction with other constitutional principles, involves the idea “that the political representatives of the people of a province have the capacity and the power to commit to be bound into the future by the constitutional rules being adopted”.²

In this sense, far from negating democracy, constitutionalism creates an orderly framework that allows people to make political decisions: “Viewed correctly, constitutionalism and the rule of law are not in conflict with democ-racy; rather, they are essential to it.”³ One year later, the Supreme Court of Justice of Venezuela examined a similar issue. The case before the Supreme Court of Justice did not involve the secession of a political unit from a federation, but the creation of a new constitutional regime through a procedure not contemplated by the constitution’s amendment rule. The controversy originated when the then recently installed government called for a referendum that asked the Venezuelan electorate whether they wished to convene a constituent assembly in order to create a new juridical order. The amendment procedure of the 1961 Constitution, a typical liberal constitution, placed the amending power in the hands of the ordinary legislature.

Not surprisingly, many jurists argued that to convene a constituent assembly was contrary to the established juridical order and would require a previous constitutional amendment. In a decision that explicitly recognised the existence of a tension between constitutionalism and democracy, the court held that the constitution’s amendment rule applied only to government and not to the people in the exercise of their constituent power, which included the ability to alter the constitutional regime through extra-constitutional means.4 The reasoning of the court, which justified the abolition of the established constitutional regime in violation of valid positive law, seems alien to the traditional constitutionalist approach. It is, however, grounded on a theory that, although mostly ignored by contemporary Anglo-American constitutional thought, might allow us to re-conceive the relationship between constitutionalism and democracy.

This chapter will introduce the theory of constituent power and consider the role, if any, it has played in the contemporary constitutional practice of different countries. The chapter begins by considering the work of George Lawson and John Locke, which is sometimes seen as an early formulation of the theory of constituent power. In showing that these two authors can at best be understood as advancing a theory of resistance, this first section will stress constituent power’s main feature: that it can be exercised at any moment after a constitution is in place, not only as a response to extreme governmental abuses. The second section considers the work of Emmanuel Sieyes and Carl Schmitt. Sieyes provided the first major theoretical treatment of constituent power, and Schmitt developed (and radicalised) Sieyes’ conception in important ways. Finally, the third section will contrast the very limited role that constituent power has played in Anglo-American constitutionalism (particularly in the tradition of parliamentary sovereignty) with its presence and influence in Latin America. In fact, Latin American constitutionalism, with all its problems and setbacks, has developed the theory of constituent power in interesting and promising ways.

Locke and Lawson: Constituent Power or Right of Resistance?

Although the modern theory of constituent power did not appear until the late eighteenth century in the context of the French and American revolutions, George Lawson and John Locke came close to developing its main ideas. Not surprisingly, some authors see Locke and Lawson as theorists of constituent power, but I believe this characterisation is mistaken.⁵ At best, Lawson and Locke can be understood as providing a theoretical explanation for the right to resist an oppressive regime.⁶ It is true, as Andreas Kalyvas has argued, that Lawson and Locke went beyond the idea of sovereignty as ‘the power of command’ (present in authors such as Jean Bodin and Thomas Hobbes, and still very influential in our times) and linked sovereignty to the community’s power of creating new constitutional regimes.⁷ But Lawson and Locke did not see this power, this popular sovereignty, as susceptible to being exercised at any moment; rather, they conditioned it to situations in which government dissolved itself by breaching the people’s trust. As Kalyvas himself has maintained, they were more interested in justifying resistance to an unjust government than “to account for those historical moments of genuine rupture and transformation”. ⁸

George Lawson published his Politica Sacra et Civilis9 in 1657, engaging in what has been aptly described as a “systematic and comprehensive reconstruction of the theory of sovereignty”, one that places ultimate sovereign power in the community rather than in a parliament or a prince.¹⁰ Lawson conceived a community as a group of associates capable of constituting a commonwealth or form of government, which he defined as the “order of superiority and subjection in a community for the public good”.¹¹ Once a commonwealth is established, individuals become subject to the power of those invested with the faculty of law-making.¹² But the ordinary law-making power cannot adopt certain kinds of laws or give subjects certain types of commands, at least not if it does not wish to awaken the real sovereign power, which always remains in the community. That is to say, Lawson thought that in every commonwealth, regardless of the form of government it assumed, there were two different kinds of power.

On the one hand, he identified personal majesty with the ordinary law-making power of government, “the power of a commonwealth already constituted”, which was exercised in England by the two houses of Parliament and the King.¹³ On the other hand, he distinguished personal majesty from the “power to constitute, abolish, alter, [and] reform forms of government”, which he attributed to the community and identified as real majesty.¹⁴ Personal majesty includes what, in Bodin’s and Hobbes’ theories, was understood as the ‘power of command’, the power “which concerns foreign affairs, peace, war, treaties, embassies; and the regulation of religion and human law”.¹⁵ In contrast, real majesty was defined as the sovereign “power to model the state”.¹⁶ The power to constitute government – real majesty – is never transferred from the community to their representatives.¹⁷ However, it is to be exercised only after government dissolved itself by exceeding its jurisdiction or undermining the constitution: “[a]s the community hath the power of constitution, so it hath of dissolution, when there shall be a just and necessary cause”. ¹⁸

Lawson thus denounced the ideas of Junius Brutus, usually attributed with the authorship of Vindiciae Contra Tyrannos, who thought that whoever had the power to constitute a government also had the power to create a new one whenever they wished. A multitude of subjects could not get together and simply decide they wanted to alter or abolish the constitution for, as subjects, they had voluntarily submitted to obey the “laws once made, or suffer”.¹⁹ In other words, subjects lived under a form of government and had obligations towards it: only the community, after government had dissolved, could exercise its real majesty if they had just and necessary cause.²⁰ When the conditions on which personal majesty is held are transgressed, such as cases of “negligence, imprudence, injustice, oppression, and other such like sins”,²¹ the obligation to obey terminates or dissolves and all authority reverts back to the community.²² Those types of abuses “offend God” and, in some cases, God might stir up the people to rebel.²³ To use the example that Lawson probably had in mind: when Charles I broke with Parliament in 1642, government was dissolved and all power reverted to the community, which was then (and only then) free to establish a new constitutional regime.24

Parliament, in contrast, are only authorised to exercise its personal majesty within certain limits and for certain purposes, and cannot “meddle with the fundamental laws of the constitution”.²⁵ Placing himself at odds with latter formulations of parliamentary sovereignty, Lawson was very clear on this point. In this respect, he agreed with Sir Roger Owen, who thought that there were things even parliament could not do, such as changing the form of the polity from a monarchy to a democracy.²⁶ The reason why parliament could not do such things, Lawson argued, is because it only had personal and not real majesty.²⁷ In fact, some of Lawson’s statements appear to be early formulations of the doctrine of constitutional supremacy: “The form of government was first constituted by the community of England, not by the parliament. For the community and people of England gave both king and parliament their being: and if they meddle with the constitution to alter it, they destroy themselves . . .”²⁸ This does not mean that Lawson thought that once government was dissolved, the community could not make use of the existing parliament to exercise its real majesty, “but this cannot be as a parliament, but considered under another notion, as an immediate representative of a community, not of a commonwealth”.²⁹

Like Lawson, John Locke maintained that the supreme power of the community is to be exercised only in situations of extreme injustice. The community always retains the right of saving itself from anybody, including the legislative and executive branches of government.³⁰ In Locke’s words, it has “a supreme power to remove or alter the legislative when they find the legislative act contrary to the trust reposed in them”.³¹ Human beings had entered into society and established a commonwealth (an independent community that could take the form of a democracy, monarchy, or aristocracy)³² precisely to enjoy the protection of their property (which, for Locke, included their lives, liberties and estates)³³ and there was no reason why they should tolerate a regime that violated their rights to those things.³⁴ This power could not be exercised after “every little mismanagement in public affairs”³⁵ but only when any part of government acted with “a calculated design to subvert the law and public liberty as such”.³⁶ For example, when parliament acts against the trust reposed in it, by making itself or any other person or entity a master or arbitrary disposer of the property of the people, the community’s right to create a new government is triggered.³⁷

The same occurs when an executive exercises its powers arbitrarily or hinders the legislature from meeting or acting freely, or when the legislative attempts to transfer its law-making power to other hands, for “the people alone can appoint the form of the commonwealth, which is by constituting the legislative and appointing in whose hands that shall be” (in this sense, like Lawson, Locke set limits on the kinds of constitutional changes that could be made by parliament).³⁸ When a community is confronted by actions of that type, by a “long train of abuses” from its government, government dissolves and power “devolves to the people who have a right to resume their original liberty”.39 In exercising that right, they can provide for their own safety and security (which is the very reason why they entered into the social contract in the first place) by establishing a new legislative power. However, in a normal situation where government is in place, parliament is to be considered the supreme power, for it has a superior power to adopt laws that bind all subjects. ⁴⁰

Lawson and Locke’s conception is reflected in the founding document of the American Revolution: “[W]henever any Form of Government becomes destructive of these ends [’that all men are created equal, that they are endowed by their Creator with certain unalienable Rights’] it is the Right of the People to alter or to abolish it, and to institute a new Government.”⁴¹ Echoing Locke’s literal words, the same document established: “[W]hen a long train of abuses and usurpations, pursuing invariably the same Object, evinces a design to reduce [the people] under absolute Despotism, it is their right, it is their duty, to throw off such Government . . .”⁴²

In that respect, like Lawson, Locke was at pains to show that even if it is true that the people as a whole is the real supreme power, it cannot be considered as such “under any Form of Government”, because “this power of the people can never take place till the government be dissolved”.⁴³ By creating a commonwealth, the people “provided a legislative with power to continue forever”,⁴⁴ and they cannot resume their political power while the government lasted. Nevertheless, and providing the community with an important role in determining whether it could exercise its supreme power, Locke maintained that whenever there was a question of whether the legislative or executive have acted against the people’s trust and therefore government should dissolve, “the people shall be judge”.⁴⁵

Despite providing an important justification for resistance, this approach, as Lawson’s, should be understood as a way of limiting the power of government: it is not inspired by a desire to place constitutional change in the hands of the citizenry.⁴⁶ That is why Locke devotes an important section of the Second Treatise to rejecting the possible argument that his theory is an invitation to rebellion.⁴⁷ He thus maintained that even “[g]reat mistakes in the ruling part, many wrong and inconvenient laws, and all the slips of human frailty will be borne by the people without mutiny or murmur”.⁴⁸ In fact, Locke’s theory is consistent with limiting people’s participation in politics to an extent that one might argue, with Edmund Morgan, that it provided a rhetorical strategy for government to operate free of popular control.⁴⁹ In other words, it is a theory inconsistent with the basic principles of popular participation and democratic openness. A formulation of the power to constitute government consistent with these principles can be found in the theory of constituent power, defended by Emmanuel Sieyes and Carl Schmitt, according to which present generations ought to have an unlimited right to model the fundamental laws under which they live.

Sieyes and Schmitt on Constituent Power and Constitutional Remaking

Sieyes developed the famous distinction between constituent and constituted powers in What is the Third Estate?50 Despite its undeniable theoretical value, What is the Third Estate? was a political pamphlet written with a determinate political objective: proving that the Third Estate, as the only legitimate representative of the French nation, had the power to adopt a constitution for France. As we will see below, unlike Lawson and Locke, Sieyes did not restrict this power to instances of tyranny or despotism in which government dissolved and power reverted to the community. He thought that a nation, understood as “a body of associates living under common laws and represented by the same legislative assembly”,⁵¹ could not be permanently subject to any constitution, that the living could not waive their right to will even after constituting a juridical order. While the power of the nation to alter its constitution was unlimited, the nation’s representatives had to operate according to the requirements and procedures contained in it. Ordinary representatives were an inevitable necessity in a community that had become “too numerous and occupy too large an area to exercise their common will easily by themselves”, but should not be attributed sovereign powers.⁵²

Accordingly, representatives did not have the power to create or to change a constitution: a constitution, after all, is the document that allows the representative assembly to exist and to act, and that ensures public power is not used to injure the members of the community (e.g., through the adoption of a set of “political safeguards” that limit political power).⁵³ Although a form of positive law, the constitution emanates “exclusively from the will of the nation” (as opposed to the will of ordinary representatives).⁵⁴ Ordinary representatives are only called to maintain a good social administration and thus have a power confined to governmental affairs.⁵⁵ In short, a legislature exists only in the form “which the nation has chosen to give to it”, and is “is nothing outside the articles of the constitution; only through its constitution can it act, conduct its proceedings and govern”.⁵⁶ Up to now, we find no irreconcilable differences between Sieyes, Locke and Lawson. However, and here is where he departs from the two other authors, Sieyes believed that in the same way that it was correct to say that representatives are bound by the constitution, “it would be ridiculous to suppose that the nation itself could be constricted by the procedures or the constitution to which it had subjected its mandatories”.⁵⁷ The nation is thus free to unbind from the constitutional regime whenever its interest requires so; the mere fact of expressing its will “puts an end to positive law, because it is the source and the supreme master of positive law”.⁵⁸

Sieyes understood the nation, as the bearer of the constituent power, to be in the same position as the individuals living in the state of nature and, consequently, the exercise of its will had to be superior and independent of any constitutional form. “The manner in which a nation exercises its will,” wrote Sieyes, “does not matter; the point is that it does exercise it; any procedure is adequate, and its will is always the law.”59 On the other hand, the constituted powers – the legal and political institutions created by the constituent power – are always limited by the constitutional forms that grant their existence.⁶⁰ For example, an ordinary legislature must adopt statutes in the manner prescribed in the constitution and, in the exercise of its ordinary law-making faculties, it has no power to alter the constitutional clauses that determine its own competencies.⁶¹ In attributing the unlimited faculty of making and remaking constitutions to the people as opposed to government, Sieyes’ theory of constituent power shows an important democratic potential but, unfortunately, he did not take that potential to its ultimate implications.

On the contrary, he combined his theory of constituent power with a particular conception of representation that extirpates much of its radical democratic force. It will be recalled that for Sieyes, representation in a modern society is necessary since the nation comprises too many members and they cannot assemble to exercise ordinary governmental powers. But the same reasons that led Sieyes to conclude that the institution of representation is necessary at the level of day-to-day governance also led him to conclude that the exercise of constituent power could (and needed to) be represented as well. He thus introduced the idea of extraordinary representatives, granted with “whatever new powers the nation chooses to give them”.⁶² For him, a body of extraordinary representatives armed with the mandate to engage in the adoption of a new fundamental law “is in the same position as the nation itself in respect of its independence from the constitutional forms”.⁶³ That is to say, extraordinary representatives can will as individuals in the state of nature could will, and are “a substitute for the whole nation in the course of framing its constitution”.⁶⁴

The will of the extraordinary representatives, just as the will of the constituent power itself, is the source of constitutional law: they can put an end to any form of positive law, create a new constitution or transform an already existing one in important ways.⁶⁵ From the perspective of democracy at the level of the fundamental laws this creates some obvious problems: the episodical character of constituent activity makes possible more direct forms of popular involvement in constitutional change. But perhaps even more democratically deficient is the fact that the nation, like Lawson’s community, can give (through unspecified means) the ordinary assembly (that is, the established legislature) the mandate to exercise constituent power on its behalf. “Identical people,” he wrote, “can certainly take part in different bodies and exercise in turn, by virtue of special mandates, functions which, given their nature, must not be merged together.”⁶⁶ In such occasions, when acting as extraordinary representatives, legislators are not subject “to any procedures whatsoever”, but constitute an assembly that “meets and debates as the nation itself would do if we assumed a nation consisting of a tiny population that wanted to give its government a constitution”.⁶⁷

As Carré de Malberg argued, through the introduction of the principle of representation, Sieyes “notably weakened the scope of his system of popular sovereignty”.68 In fact, some of Sieyes’ thoughts on the relationship between democracy and representation are strongly reminiscent of the anti-democratic sentiment that was characteristic of the eighteenth century: “The people, I repeat, in a country which is not a democracy (and France would not be one), the people may only speak and may only act through its representatives.”⁶⁹ However, like most nineteenth-century political theorists, Sieyes identified democracy with what in Chapter 4 we called ‘direct assembly democracy’, and thus thought that it was a form of government impracticable in France.⁷⁰

Despite its democratic limitations, Sieyes’ theory of constituent power goes beyond Lawson’s and Locke’s theories of resistance and recognises the people’s ultimate constitution-making power. It is a constitutional theory that rests on a distinction between a will that pre-dates the constitution and is superior to it, and the positive constitutional forms that determine how public power is to be exercised and how ordinary laws are to be created. It attributes to the constituent power not only the extraordinary faculty of constitution-making, but the capacity of not being absorbed by the adoption of a constitution. In this respect, Sieyes’ conception points toward a constitutional theory alien to liberal constitutionalism, one which allows an extra-constitutional power to exist besides the established constitution.

Sieyes’ theory was further developed by Carl Schmitt in his comprehensive study of the Weimar Constitution.⁷¹ Like Sieyes, Schmitt conceived constituent power as an absolute and unlimited constitution-making faculty, radically unbound by the established constitutional forms and incapable of being limited by any form of positive law. Nevertheless, Schmitt developed the relationship between constituent power and the constitution in more systematic ways. For him, the constituent power – through an act of will – creates the Constitution, which carries with itself the fundamental political decisions about the form of government and the structure of the state.

This is why Schmitt defined constituent power as a political will “capable of making the concrete, comprehensive decision over the type and form of its own political existence”.⁷² As such, the Constitution is to be distinguished from mere ‘constitutional laws’ (understood as individual constitutional clauses enumerated in the document called ‘the constitution’ but lacking a truly fundamental character).⁷³ Constitutional laws are simply norms that have been included in the written constitution in order to protect them from parliamentary majorities, and should not be confused with the fundamental political decisions made by the constituent power. The distinction between the Constitution and constitutional laws has important implications for the power of constitutional reform. For Schmitt, the power to reform a constitution is a constituted power (that is, a power granted by the constitution itself) that can only modify the constitutional laws and does not include the faculty of producing the kind of profound changes proper for an exercise of constituent power. ⁷⁴

That is to say, only the constituent subject, not the institution given the power of constitutional reform, is capable of altering the Constitution and the fundamental political decisions it entails. However, this does not mean that the Constitution can never be altered, that constituent power may only be exercised once. In fact, Schmitt defended and developed Sieyes’ idea that constitutions are born and may die, but that the constituent power on which they rest cannot be destroyed or consumed by the law it creates: “The [constituent power]75