Two Arguments against the Theory of the Constituent Power

Justice Carlos Bernal

Constitutional Court of Colombia

The theory of the constituent power is a widespread conception of the nature of the constitution-making power. There are several versions of this theory. However, their common element is the thesis that the constitution-making power is foundational, legally boundless, and sovereign.

The constituent power is foundational –it is argued– for it is the primary source of legal authority. This characterization attempts to break the circularity implicit in the foundations of legal authority: an authority is legal if and only if a legal norm empowers it, and a norm is legal if and only if it has been created by a legal authority. Assuming the existence of a constituent power as a primary, pre-legal authority, that creates the constitution, breaks that circularity without giving rise to an infinite regress. Moreover, from the foundational character it follows that all constituted powers derive their legal authority from the constituent power, and that they should abide by the legally binding formal and material limitations of their specific empowerments.

Second, as a constituent power, the constitution-making power is boundless. The constituent power can neither be subject to formal nor to material limitations. It is free to create, replace or revise a constitution by means of any procedure and with any content.

Finally, the argument from the constituent power portrays the constitution-making power as sovereign arguing that it holds the ultimate authority to create legal norms. No other authority can invalidate its decisions.

The argument from the constituent power has often been used to justify extraconstitutional constitutional replacements and constitutional revisions. In this post, I would like to advance two arguments on why the theory of constituent power is conceptually incorrect: the arguments from the outcome and from the competence. They relate to the characterization of the constitution-making power as “unlimited”.

The argument from the outcome states that the constitution-making power is a legal competence to institutionalize constitutionalism. Hence, the function of constitution makers is limited to the enactment of a constitution. They cannot put in place an institutional arrangement of some other kind. From this perspective, the key question is: what is a constitution within this context? Or, in other words, what elements must an institutional arrangement bear for counting as a constitution?

I would like to argue that, within this context, only a normative/empirical conception of constitution is sound. This conception states that an institutional arrangement of the state can count as a constitution if and only if it is authoritatively enacted and socially recognized as a constitution, and also encompasses certain essential elements related to the purpose of constitutionalism: at least, the rule of law, the principle of the separation of powers, some sort of protection for individual rights or interests, and an entrenchment of the democratic idea that the legitimacy of government rests on the consent of its subjects. This conception offers the advantage of ruling out the window-dressing effect that is created when texts that do not instantiate those elements are classified as constitutions; for instance, illiberal constitutions.

Concerning the argument from competence, the enactment of a new constitution is a declaration. A declaration is a kind of illocutionary speech act. An illocutionary speech act is an act that is performed “in saying something”. Agents exercising the constitution-making power enact the constitution –i.e. attribute legal validity to a written constitutional text– by solemnly declaring that they enact the constitution. The enactment of a constitution is successful if it makes the case that the constitution is enacted.

All illocutionary speech acts must meet some conditions concerning what must be fulfilled for a successful and non-defective performance of the act. A condition of the enactment of the constitution is that political agents enacting the constitution have a competence to do so. Declarations have at least a world-to-word direction of fit. Their point is to bring the world to match their contents. No one can transform the legal world by enacting a valid constitution, that is, by means of the declaration that a constitution is valid, if they lack the legal competence to do so.

Hence, if for enacting a constitution it is necessary to have the competence to do so, then each exercise of the (constitution-making) power to enact a constitution is limited by the boundaries of the competence to do so. In this respect, despite their differences, the power to enact a constitution shares a feature with the power to amend the constitution, namely, that both are limited. Both can only be legally exercised within the confines of their respective competences.

The argument from the constituent power soundly reflects some empirical aspects of the constitution-making power. No agent lacking real political power can enact a constitution. However, this conception overlooks that the constitution-making power is a legal authority, that is, a normative power to change another’s normative relations. It mistakenly reduces the constitution-making power to facts: coercion and factual power. Nevertheless, from a factual power cannot derive a normative power to change normative relations. Only an agent empowered with a normative competence to change normative relations of other people can do so.

There is a conceptual and a normative connection between the argument from the competence and the argument from the outcome. Individual and collective competencies of individuals and groups related to constitution-making are limited. Individuals participating in constitutional referenda or electing members of constituent assemblies enjoy the limited competence of voting for the options and candidates at stake under valid electoral rules. Moreover, constituent assemblies sometimes have a definite mandate with thematic and sometimes temporal constraints. In addition, the empowerment of constituent assemblies is limited to the action of enacting a constitution and not a text entrenching an institutional arrangement of some other kind. Last, but not least, the limited nature of legal competencies enables accountability. Political authorities are accountable for exercising political powers within their scope. Thus, it would be paradoxical that the highest and most powerful authority of law and state, namely, the constitution-making power, should be conceived as an unaccountable power, given that making accountability of authorities possible is precisely one of the aims of creating a state and a legal system by enacting a constitution.

Carlos Bernal is a Justice of the Constitutional Court of Colombia.

Suggested citation: Carlos Bernal, ‘Two Arguments against the Theory of the Constituent Power’, IACL-AIDC Blog (21 June 2019) https://blog-iacl-aidc.org/membership-and-exclusion/2019/6/18/two-arguments-against-the-theory-of-the-constituent-power