Untitled

Weak Constitutionalism
It has been frequently argued that democracy is protected and realised under
constitutions that protect certain rights and establish the conditions for a
functioning representative democracy. However, some democrats still find
something profoundly unsettling about contemporary constitutional regimes.
The participation of ordinary citizens in constitutional change in the world’s
most ‘advanced’ democracies (such as the United States, Canada and the
United Kingdom) is weak at best: the power of constitutional reform usually
lies exclusively in the hands of legislatures. How can constitutions that
can only be altered by those occupying positions of power be considered
democratically legitimate?
This book argues that only a regime that provides an outlet for constituent
power to manifest from time to time can ever come to enjoy democratic legit-
imacy. In so doing, this book advances a democratic constitutional theory
combining a strong or participatory conception of democracy with a weak
form of constitutionalism. The author engages with Anglo-American consti-
tutional theory as well as examining the theory and practice of constituent
power in different constitutional regimes (including Latin American coun-
tries) where constituent power has become an important part of the left’s
legal and political discourse. Weak Constitutionalism: Democratic legitimacy
and the question of constituent power will be of particular interest to legal/
political theorists and comparative constitutional lawyers. It also provides an
introduction to the theory of constituent power and its relationship with
constitutionalism and democracy.
Joel I. Colón-Ríos is Senior Lecturer in Law at Victoria University of

Wellington. He is the author of ‘Carl Schmitt and Constituent Power in Latin
American Courts: The Cases of Colombia and Venezuela’ (Constellations:
An International Journal of Critical and Democratic Theory, 2011, vol 18(3),
pp 365–388) and ‘The Counter-Majoritarian Difficulty and the Road Not
Taken: Democratizing Amendment Rules’ (Canadian Journal of Law and
Jurisprudence, 2012, vol 25(1), pp 53–78).
Routledge Research in Constitutional Law
Available titles in this series include:
Democratic legitimacy and the question of constituent power
Joel I. Colón-Ríos
Forthcoming titles in this series include:
Constitutional Amendment in Europe, Canada and the USA

A comparative approach
Xenophon Contiades, Centre for European Constitutional Law
Democratic legitimacy and the
question of constituent power
Joel I. Colón-Ríos
First published 2012
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
Simultaneously published in the USA and Canada
by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2012 Joel I. Colón-Ríos
The right of Joel I. Colón-Ríos to be identified as author of this work
has been asserted by him in accordance with sections 77 and 78 of
the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic, mechanical,
or other means, now known or hereafter invented, including
photocopying and recording, or in any information storage or
retrieval system, without permission in writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Colón-Ríos, Joel I.
Weak constitutionalism : democratic legitimacy and the question
of constituent power / Joel I. Colón-Ríos.
p. cm.
ISBN 978-0-415-67190-3 (hardback)—ISBN 978-0-203-12013-2
(e-book) 1. Constitutional law. I. Title.
K3165.C574 2012
342—dc23
2011044608
ISBN: 978-0-415-67190-3 (hbk)

ISBN: 978-0-203-12013-2 (ebk)
Typeset in Garamond
by RefineCatch Limited, Bungay, Suffolk
“Weak Constitutionalism by Joel Colón-Ríos is the best attempt I know to redeem
a strong, populist notion of the constituent power, founded by Sieyes and reconstructed
by Carl Schmitt. This is a work that all of us will now have to take into account if
we are interested in democratic interpretations of constitutionalism. The book is highly
intelligent, and is powerfully argued. Its biggest virtue lies in linking together
abstract issues of theory and the political issues we face today.”
– Andrew Arato, Dorothy Hart Hirshon Professor of Political and
Social Theory, The New School for Social Research, New York
“Colón-Ríos has put forward the strongest and most sophisticated defence of weak
constitutionalism yet available. Seeking to reinvigorate the lapsed commitment to
democracy, he has made a powerful and detailed critique of the failure of con-
temporary efforts to justify our current constitutional arrangements in terms of their
democratic legitimacy. Instead, he puts forward a compelling glimpse of what a
constitutional order might look like in the service of a truly robust and uncompromised
democratic society. Even if he will not convince everyone, Colon-Rios poses a series of
crucial questions that any scholar of constitutionalism and democracy worth their salt
must address and answer.”
– Allan C. Hutchinson, Distinguished Research Professor,
Osgoode Hall Law School, York University, Canada
“The birth of constitutional democracy in regions of the world thought to be on the

periphery of political ‘development’ has reinvigorated long-standing debates over con-
stitutionalism. Joel Colón-Ríos wades into this debate with an arresting and timely
thesis. What makes constitutions ‘work’ is not how well they enchain democracy, but
the political and democratic struggles by which constitutions are made. Paradoxically,
well-crafted constitutions have mechanisms that undermine constitutional rigidity and
facilitate popular participation in constitution making. Weak Constitutionalism
makes a compelling argument that scholars have much to learn from the birth of new
constitutions around the globe.”
– Miguel Schor, Professor of Law, Suffolk University Law School
and Visiting Professor of Law, Drake University Law School,
2010–12 academic year
Contents
Acknowledgements ix
1 Introduction: towards a weak constitutionalism 1

Democratic constitutionalism 3
Democracy and the fundamental laws 5
Constituent power 7
Democratic legitimacy 9
Weak constitutionalism 10
Outline of the argument 12
2 The end of constitutionalism 17

The aspiration to permanence (or the fear of constituent power) 18
Constitutionalism as the protector of democracy 21
Beyond ‘democratic rights’: the extra-democratic effects
of constitutions 26
Concluding remarks 29
3 The second dimension of democracy 35

The two dimensions of democracy 36
The theory and practice of substantive and procedural democracy 41
Ignoring the second dimension of democracy 43
The second dimension of democracy: approaching constituent power 47
4 Democracy’s principles 57
The principle of democratic openness 57
The principle of popular participation 60
Negating democratic openness 64
Negating popular participation 68
viii Contents
5 The theory (and practice) of constituent power 79
Locke and Lawson: constituent power or right of resistance? 80
Sieyes and Schmitt on constituent power and constitutional
remaking 84
Constituent power in contemporary constitutionalism 88
6 The idea of democratic legitimacy 102

The idea of legitimacy 103
Towards a conception of democratic legitimacy 107
Democratic legitimacy and the risks of constituent power 109
The conditions of democratic legitimacy 114
7 The transformation of the juridical 126

Schmitt and Rawls on the limits of constitutional reform 127
The judicial doctrine of constitutional substitution 132
Constitutional reform and acts of the people 139
8 The beginnings of weak constitutionalism 152

Weak constitutionalism 153
Exercising constituent power or weak constitutionalism’s mechanisms 156
Of constituent assemblies convened from below 160
Constituent assemblies and unwritten constitutions 165
9 Activating constituent power 175

The activation/execution distinction 175
Of revolutions, informal assemblies, and other protests 178
10 Conclusion 186
Bibliography 189
Index 203
Acknowledgements
This book is the result of a research project that I began as a doctoral student
at Osgoode Hall Law School and that I have continued as a Lecturer at Victoria
University of Wellington. Accordingly, it has benefited from the criticisms
and recommendations of many friends and colleagues, and attempting to
name them all would be as risky as such endeavour can be. I will thus only be
able to mention a few. First of all, I am deeply grateful to Allan C. Hutchinson,
who supervised my doctoral work and has provided me with valuable advice
over time. In many ways, without his intellectual support and encourage-
ment, this book would not exist. I would also like to express my thanks to
Leslie Green and Bruce Ryder who, as members of my supervisory committee,
provided me with critical comments that have proven immensely valuable.
Ray Bazowski, Patrick Monahan, Liora Salter and Brian Tamanaha also
contributed to the improvement of my dissertation, and their comments and
criticisms have also benefited the arguments presented in this book. There are
also many friends and colleagues who, during my time at Osgoode Hall,
contributed to the development of my research and provided me with valu-
able criticisms, suggestions and friendship. They include Amaya Alvez Marín,
Vassili Apostolopoulos, Rusby Chaparro Quijano, Frank Luce, Martín Hevia,
Shin Imai and Zoran Oklopcic.
Despite originating in my doctoral work, the book is partly based on
research I have completed since joining the Faculty of Law at Victoria
University of Wellington. At Victoria, I have had the opportunity to discuss
many of the ideas presented in the book at different faculty workshops, which
have proven extremely helpful. In addition, I benefited from a number of
conversations about democracy and constitutionalism with my colleagues
Mark Bennett and Rayner Thwaites. My gratitude also goes to Seonah Choi,
Xavier Forde, Ana Gilling and Daniel Jackson, who read the entire manu-
script and provided me with valuable recommendations and critiques. Part of
this project was funded by Victoria University Research fund, for which
I am grateful. I would also like to thank my parents for their love and support.
My father is no longer with us, but I know he would have enjoyed reading my
manuscript. Last but not least, I would like to thank Graciela, Lucas and
Matías. They have provided me with the happiness and inspiration to finish
x Acknowledgements
this book. I am not only indebted to Graciela for her love, patience and uncon-
ditional support, but also for her substantive criticism and recommendations.
I dedicate this book to her.
Some sections of this book build on material that I have developed in
previous articles. The first sections of Chapters 2 and 4 contain revised excerpts
from ‘Deconstitutionalizing Democracy’, California Western Law Review,
2011, vol 47, p 41. Chapter 3 is an extended and revised version of ‘The
Second Dimension of Democracy: The People and their Constitution’, Baltic
Journal of Law and Politics, 2009, vol 2(2), p 2. The third and fourth sections
of Chapter 6 and the first section of Chapter 7 contain revised excerpts from
‘The Legitimacy of the Juridical: Constituent Power, Democracy, and the
Dilemmas of Constitutional Reform’, Osgoode Hall Law Journal, 2010, vol
48(2), p 199, and from ‘New Zealand’s Constitutional Crisis’, New Zealand
Universities Law Review, 2011, vol 24(3), p 448. The second section of Chapter
7 contains revised excerpts from ‘Carl Schmitt and Constituent Power in Latin
American Courts: The Cases of Colombia and Venezuela’, Constellations: An
International Journal of Critical and Democratic Theory, 2011, vol 18(3). The
fourth section of Chapter 8 contains revised excerpts from ‘New Zealand’s
Constitutional Crisis’, New Zealand Universities Law Review, 2011, vol 24(3),
p 448.
1 Introduction
Towards a weak constitutionalism
Constitutional theory has turned its back on democracy. The debate about the
relationship between democracy and constitutionalism,1 which promised to
expose the limits and undemocratic potential of the latter, has failed to
produce a democratic constitutional theory. It has instead resulted in the
proliferation of highly sophisticated arguments assuring us that democracy is
protected and realised under traditional liberal constitutional forms. How can
there be a democracy without the constitutional right to free speech, freedom
of association, or the right to vote? How can there be a free contemporary
society, one that is able to deliberate and decide on matters of policy and high
principle, without elected representative institutions operating under a liberal
constitutional framework? When the relationship between constitutionalism
and democracy is presented in such terms, all cards appear to be in favour of
keeping constitutionalism untouched and re-defining democracy in a way
that makes it consistent with the constitutionalist ideal.
Thus, we have been told over and over again, modern constitutions guar-
antee the rights and institutions that make democracy possible; without
them, the very possibility of deliberation and of the creation of a truly demo-
cratic will would suffer a fatal blow.2 Moreover, if these rights and institutions
need to be expanded, if they need to be made more inclusive and transforma-
tive, or if minority protections need to be strengthened, progressive judges
and academics will always find novel ways of re-interpreting the existing
constitution. And if we are unlucky enough to confront the highly unusual
case in which achieving a particular outcome requires a change in a written
constitution, government officials can always resort to the demanding – but
decidedly organised and reliable – established amendment procedure. That is
in fact the beauty of constitutional law: it guarantees democracy and at the
same time remains impermeable to the passions of mass politics.
Yet democrats still find something profoundly unsettling about contem-
porary constitutional regimes. How can constitutions (written or unwritten)
claim to enjoy democratic legitimacy, how can they be considered the creation
of the people, their work-in-progress, if they can only be changed and
interpreted by those occupying positions of power? The participation of or-
dinary citizens3 in constitutional change – as well as their opportunities for
2 Introduction
participation – in the world’s most ‘advanced’ democracies (such as the United
States, Canada and the United Kingdom) is weak at best: the power of consti-
tutional reform usually lies exclusively in the hands of legislatures. In some
cases, constitutional amendments are subject to ratification by the electorate
in referendums (which by themselves are very far from exhausting the
democratic ideal); in others, citizens are not even allowed to take part in
such a low-intensity form of participation before the country’s fundamental
constitutional framework can be transformed.
For the democrat, such an approach can only be compatible with an
extremely limited conception of democracy. During periods of constitutional
change, the often repeated argument that in the day-to-day governance of a
large and complex society a genuine realisation of the democratic ideal is
impossible or undesirable does not seem that convincing. That is to say, it is
true that millions of human beings cannot come together in an assembly (at
least not in any politically meaningful way) to discuss and decide on the
content of every ordinary law. And it might also be true that even if they were
able to do so, or if another mechanism for the participation of the entire citi-
zenry was developed, most people would not be willing to devote part of their
already limited time to daily politics. But constitutional change is episodical
by nature; it takes place (or should take place) in exceptional moments in
which there is wide interest and support for important juridical transforma-
tions. This special feature of constitutional change seems to make more likely
the success of novel forms of democratic engagement.
Moreover, while some rights can be seen as constitutive of democracy (as
they allow citizens to engage in public discussion and in different forms of
political participation) and other rights may be understood as guaranteeing a
private sphere that allows citizens to explore different conceptions of the
good, a traditional liberal constitution does much more than protecting these
types of rights. Constitutions also contain provisions that organise the struc-
ture of the state, establish or facilitate certain forms of economic (de)regula-
tion, or limit the duties of government towards citizens in ways that do not
seem to be connected to the realisation of democracy. Can a constitutional
regime that contain these (non-democracy-enabling) types of norms and
whose modification is out of the scope of the decision-making power of
popular majorities be considered legitimate from a democratic perspective? If
not, is there a way of making contemporary constitutional regimes demo-
cratically legitimate? Can constitutionalism be reconceived in a way that is
more consistent with fundamental democratic principles?
In considering and providing answers to these questions, this book has two
main objectives. First, it seeks to show that ordinary citizens’ lack of opportu-
nities to re-create ‘their’ fundamental laws, to engage in acts of democratic
re-constitution, puts into question the democratic legitimacy of the constitu-
tional regimes under which they live. Second, it aims to provide alternatives
to overcome that deficit of democratic legitimacy. These alternatives would
give citizens the means to propose, deliberate and decide upon important
Introduction 3
constitutional transformations through extraordinary mechanisms that
work independently of a constitution’s ordinary amendment procedure. The
first objective is mostly theoretical: it requires an analysis and critique of
the ways in which concepts such as constitutionalism, democracy, constitu-
tional change and democratic legitimacy are understood and deployed in
constitutional theory. In advancing that objective, the book challenges
the traditional understanding of these concepts and proposes a conception
of constitutionalism – weak constitutionalism – that requires constitutional
regimes to provide an opening, a means of egress, for constituent power to
manifest from time to time. In that sense, it must be stressed from the begin-
ning that this is not a book about the legitimacy of judicial review of legisla-
tion (the problem of democratic legitimacy would continue to exist even in
the absence of the institution of judicial review of legislation), but is instead
about the ways in which the democratic legitimacy of a constitutional regime
depends on its susceptibility to democratic re-constitution.
The second objective has a more comparative bent. An important part of
the identification and development of proposals that seek to increase the
democratic legitimacy of contemporary constitutional regimes lies in the crit-
ical exploration of institutions and understandings – already existing in some
countries – that point towards (or away from) that direction. In that respect,
although the book will mostly engage with Anglo-American constitutional
theory, it has a significant comparative component. It will not only examine
the kinds of institutions that characterise traditional liberal constitutional
systems, but also the mechanisms for popular constitutional change present
in the new ‘populist’ constitutions of Latin America (as well as their explicit
theoretical grounding on the concept of constituent power). By achieving
these two objectives, the book attempts to prepare the ground for a demo-
cratic constitutional theory. In what follows, I will briefly introduce some of
the ideas that play an important role in later chapters, as well as outlining
some of the arguments and themes that will be examined throughout
the book.
Democratic constitutionalism
What does it mean to advance a democratic conception of constitutionalism?
The question is not easy to answer. On the one hand, ‘democratic’ (like democ-
racy itself) is one of the most contested terms of our political culture. To
characterise something as democratic or non-democratic is to invite a discus-
sion about what democracy really means. On the other hand, discussions
about constitutionalism might include topics as disparate as when and how a
constitution should be amended, what theory of constitutional interpretation
should guide judges in a democracy and whether the institution of judicial
review of legislation can be justified in a democratic society. Thus, to propose
a democratic form of constitutionalism can be understood as equivalent to
defending mechanisms of popular participation in constitutional change,
4 Introduction
arguing in favour of a theory of constitutional interpretation that respects the
values of present generations, or claiming that the elected representatives of
the people, rather than judges, should have the last word on the meaning and
scope of a constitutional provision.
There is, however, something common to these apparently dissimilar
approaches: in their own ways, they are attempts of making the content
of constitutional law more accessible to the people and increasing popular
involvement in constitutional change. If discussions about democratic
constitutionalism are understood in this way, then calls to democratise consti-
tutionalism are more than two centuries old. However, these calls have
consistently failed and, not surprisingly, they have begun to fade away, while
the very issues at stake have been transformed in important ways. Take, for
instance, the constitutionalism–democracy debate in the United States. Since
the founding of that country in the eighteenth century, there is a continuing
debate, still very much alive today, about how the constitutional system
should ‘balance’ constitutionalism and democracy. This debate has come in
different waves: the first wave focused on whether present-day majorities
should be allowed to abandon the constitutional forms created by the
founders;4 the second focused on the legitimacy of judicial review of legisla-
tion and on selecting from different theories of constitutional interpretation;5
and the third focused on the exclusivity (or non-exclusivity) of the US
Constitution’s amendment rule.6 Depending on the position one takes in
those waves of the debate, it could be argued, one moves closer to or further
away from a democratic form of constitutionalism.
Nevertheless, although those engaged in each of these waves made impor-
tant contributions to constitutional theory, there was something special about
the earliest wave of the debate. Freed from the questions of interpretation and
the never-ending controversy over the legitimacy of judicial review, the
protagonists of that debate (the US ‘founding fathers’) were able to consider
the relationship between constitutionalism and democracy in its raw form:
Should popular majorities be allowed to alter the constitution?7 As we know, the
answer to that question can be understood as democratic constitutionalism’s
first defeat. Institutionally, the answer came in the form of Article V, the US
Constitution’s amendment rule, which not only created almost insuperable
constraints on constitutional change, but also placed the amending power
exclusively in the hands of government officials. A number of constitutional
theorists and political scientists have since criticised the rigidity of Article V.8
However, the constitutionalism–democracy debate in the US has moved away
from its initial interest in the desirability (or undesirability) of allowing
popular majorities to decide what should be the content of their constitution.
Article V has become an inescapable default; the task now seems to be finding
arguments for making constitutionalism consistent with democracy despite
Article V.
Of course, there is nothing wrong with developing new approaches to
constitutional interpretation, or with attempting to show that judicial review
Introduction 5
of legislation might be understood as one of the essential institutions of a
liberal democracy. These are, in fact, very important issues but, having a weak
connection to the (original) emphasis in popular involvement in constitu-
tional change, they are also further away from the core issue of democratic
constitutionalism. That is to say, even if judicial review is abolished (or even
in the context of an unwritten constitution that operates under the doctrine of
parliamentary sovereignty) and, regardless of what theory of constitutional
interpretation is adopted, the question of whether popular majorities (as
opposed to government officials sitting in a legislature) should be allowed to
decide on the content of their constitution would still remain. And demo-
cratic constitutionalism requires that we confront that question directly, in its
raw form. Of course, there is no final or technically correct answer to it: what
democratic constitutionalism means is, in the last instance, a profoundly
political issue. The answer will invariably be influenced by one’s level of
comfort with popular involvement in the production and re-production of
the fundamental laws, with what one thinks about people’s ability to approach
substantive issues with an open mind and to deliberate with those that dis-
agree with their views; it is not simply a question of constitutional theory.
It is thus not surprising that democrats and constitutionalists of different
persuasions differ greatly on what a democratic constitutionalism would
entail. This book argues that a democratic conception of constitutionalism
should rest on the idea that ordinary citizens must be allowed to propose,
deliberate and decide upon important constitutional transformations through
the most participatory methods possible. This conception, which I call ‘weak
constitutionalism’, seeks to take the constitutionalism and democracy debate
onto more democratic ground. In a way, and as I suggested above, it can be
understood as an invitation to return to the questions addressed during the
first wave of the constitutionalism–democracy debate in the US. It rests on
what can be identified as a ‘strong’ or ‘participatory’ conception of democracy;
one which contrasts with the ways in which the dominant conception of
constitutionalism operates.9 As will be argued in Chapter 2, this prevailing
view is characterised by an obsession with the permanence of the constitu-
tional forms and a fear of constitutional change. According to that conception,
a constitution that contains the right content – a good, constitutionalist
constitution – should also be a finished constitution (one that can be updated
through judicial interpretation but whose content and the fundamental struc-
tures it creates should remain more or less intact). Such a view sees the possi-
bility of intense popular participation in constitutional change as undesirable
at best and dangerous at worst. It also sees it as unnecessary in a stable and just
political order.
Democracy and the fundamental laws

This book starts with the assumption that contemporary societies should
aspire to the realisation of a participatory conception of democracy. It sees the
6 Introduction
value of such a conception as directly connected to the ideal of self-rule, as
allowing a group of human beings to rule themselves as free and equal citizens
(as opposed to a system in which a popular majority is ruled by an external
power or a self-imposed elite). But what does democracy have to do with
constitutional change? Constitutions establish either democratic or anti-
democratic forms of government. From a certain point of view, the question
of how a constitution was created and how it can be re-created appears as a
secondary concern or, more stridently, as democratically irrelevant. If you
want to find out whether a country is democratic or not, you don’t look at its
constitution-making record or its constitutional amendment formula: you
look at whether that country’s laws and institutions provide for frequent elec-
tions, whether citizens are allowed to associate in different organisations
(including political parties) and to express their political opinions without
fear of punishment. This is, of course, true: any country that calls itself a
democracy must have those characteristics. Nevertheless, those features only
refer to what can be identified as the ‘first dimension’ of democracy: democ-
racy at the level of daily governance. This book, however, will mainly deal
with the second dimension of the democratic ideal: democracy at the level of
the fundamental laws. I briefly develop this distinction below and will
examine it in more detail in Chapter 3.
Democratic governance has to do with the daily workings of a state’s jurid-
ical apparatus, with the processes that result in the adoption of ordinary laws
and policies, and with the content of the fundamental laws. It is about the way
a constitutional regime works on a day-to-day basis: for example, can citizens
freely organise in political associations? Does the constitutional regime
contain institutions, such as judicial review of legislation or unelected upper
houses that may be seen as inconsistent with basic democratic principles?
Because of its impact on the daily lives of individuals, a lack or deficit of
democratic governance in a determinate country is generally more pressing for
its citizens than a problem of democracy at the level of the fundamental laws.
The second dimension of democracy is not about the daily workings of the
state’s political apparatus, but about the relationship of citizens to their
constitution. In a nutshell, it looks at how a constitutional regime came into
existence and how it can be altered. As Chapter 3 will show, procedural and
substantive conceptions of democracy (as well as their implementation in
actual constitutional practice) operate almost exclusively at the level of daily
governance, therefore neglecting careful consideration of the second dimen-
sion of democracy.
This is unfortunate since the second dimension of democracy, as a result
of the episodical nature of constitutional change, provides unique opportuni-
ties for intense democratic practices. The realisation of the second
dimension of democracy – democracy at the level of the fundamental
laws – requires the availability of mechanisms of constitution-(re)making
consistent with the principles of popular participation and democratic
openness (which, as will be argued in Chapter 4, should be understood as the
Introduction 7
basic principles of democracy). Democratic openness is a way of expressing
the idea that a democratic society is an open society; that is, one in which even
the most fundamental rules are open to discussion and susceptible to being
reformulated or replaced. Democratic openness welcomes conflict and dissent,
and it is incompatible with untouchable rules or provisions. However,
democracy entails not only an open society but a regime in which all citizens
share the faculty of participating in politics, as well as in the constitution
and re-constitution of the polity. Democracy means ‘rule by the people’,
and this means that a democratic society is one in which free and equal
citizens are able to participate, as much as possible, in the production
of all laws.
Democracy at the level of the fundamental laws, when understood in light
of the principles of popular participation and democratic openness, is incom-
patible with the objective of fixing in place a constitutional regime (with a
“perpetual constitution”, as Thomas Jefferson put it),10 with having a funda-
mental law very difficult or impossible to change. It is also incompatible with
a constitution impervious to the force of participatory politics: both in the
context of a ‘rigid’ written constitution that places the amending power in
legislative supermajorities, as in the context of a ‘flexible’ written or unwritten
constitution that can be altered through the ordinary law-making process, or
through changes in the practices of government officials. When important
juridical transformations are needed, it mandates a process that attempts
to reproduce the degree of democratic openness and popular participation
present during a moment of (democratic) constitution-making. A regime that
aims at the realisation of the second dimension of democracy – a democrati-
cally legitimate constitutional regime – would thus facilitate the exercise of
the constituent power of the people.
Constituent power
The theory of constituent power can be an important tool in the theoretical
arsenal of proponents of a democratic form of constitutionalism. It provides an
alternative way of thinking about the meaning and institutional implications
of a commitment to democracy at the level of the fundamental laws. In
fact, weak constitutionalism can be understood as a particular approach to
the people’s constituent power: instead of seeing constituent power as a
threat, weak constitutionalism sees it as the possibility of correcting existing
injustices through highly participatory episodes of constitutional change.
Constituent power, which will be the central object of analysis in Chapter 5,
means constitution-making power, the source of production of juridical
norms. In its classical formulations (that of Emmanuel Sieyes and Carl
Schmitt),11 constituent power is seen as a legally unlimited power, a power
that assumes the constitutional regime as radically open. To say that the
people are the bearers of the constituent power is to say that they are
sovereign and that, in the exercise of that sovereignty, they may create any
8 Introduction
constitution they want. Until recently absent from Anglo-American constitu-
tional theory, the theory of constituent power – in its Sieyesean and Schmittian
conceptions – has played an important role in the development of Latin
American constitutionalism and has lately come to occupy a salient role in the
constitutional discourse of the Latin American left.
When taken to its ultimate theoretical conclusions, constituent power
cannot be contained by a constitutional regime and can be exercised at any
time after a constitution is in place. In fact, Sieyes maintained that, even after
a constitution is adopted, the constituent subject does not lose “the right to
alter [its decisions] as soon as its interest requires”.12 And Schmitt insisted
that it was a mistake to think that constituent power “is thereby expended
and eliminated, because it is exercised once”, and that it continues to exist
“alongside and above the constitution”.13 Although the theory of constituent
power did not appear until the late eighteenth century in the context of the
French and American revolutions, there were several seventeenth-century
social contract theorists who came close to developing its main ideas. George
Lawson and John Locke are two of these authors.14 Although it has been
suggested that Locke and Lawson advanced a theory of constituent power,15 in
Chapter 5 I will argue that their theories should instead be understood as
providing a theoretical justification of the right to resist an oppressive regime.
For these authors, popular sovereignty could only be exercised after govern-
ment dissolved itself by acting against the people’s trust. The distinction
between constituent power and the right of resistance is fundamental for any
democratic constitutional theory: only a conception of constituent power
according to which its exercise can be triggered at any moment in the life of a
constitutional regime can be made consistent with the basic thrust of the
democratic ideal.
In addition to recognising the constituent subject’s unlimited faculty to
create and re-create constitutions whenever it considers it necessary, contem-
porary conceptions of constituent power emphasise its collective character.
Thus, constituent power is defined as the power to create a constitution
together, with the participation of those subject to it. Andreas Kalyvas has
expressed this idea clearly: the very meaning of the concept of constituent
power “prescribes that if one wants to constitute a new constitution, for
example, one ought to co-institute it, to institute it jointly with others”.16 As
the reader may note, constituent power seems to have a direct relationship
with the democratic ideal. This is not a coincidence: constituent power is the
expression of democracy at the level of the fundamental laws. To use Antonio
Negri’s formulation, “to speak constituent power is to speak of democracy”.17
This democratic aspect of constituent power, which requires the direct partic-
ipation of citizens in the production of the fundamental laws, is connected to
the democratic legitimacy of a constitutional regime in important ways: to say
that a particular constitution enjoys democratic legitimacy is to say that
it provides an opening for constituent power to manifest when important
constitutional transformations are needed.
Introduction 9
Democratic legitimacy
The conception of democratic legitimacy advanced in this book (and devel-
oped in Chapter 6) focuses on the ways in which a constitutional regime can
be changed and at its susceptibility to democratic alteration. Under this view,
democratic legitimacy is not about the procedure that the constitution estab-
lishes for law-making, but about the procedures it establishes for its own
transformation; it is a conception heavily informed by constituent power and
its democratic implications. Not everyone thinks about the legitimacy of
constitutional regimes in this way. It is frequently argued, for example, that
the legitimacy of a constitution depends on whether “those who are governed
by it, including the organs of the state, acquiesce to its terms”.18 This kind of
approach is not only at odds with the idea of democratic legitimacy, but – at
least potentially – with the very idea of democracy. For example, it would
consider legitimate a constitution imposed by an external agent according to
which a sole individual exercises unlimited power as long as the relevant
group of human beings ‘acquiesces to its terms’.
Other approaches to legitimacy argue instead that the legitimacy of a
constitution depends on whether its content can be justified according to
normative principles with which any rational and unbiased person would
agree. Alternatively, the legitimacy of a constitution could also be conceived
in terms of its legal validity. Under that view, a constitution would be consid-
ered legitimate if it was adopted according to previously established rules of
constitutional change.19 Despite their sophistication and appeal, these
approaches are insufficient from the perspective of democratic legitimacy in so
far as they can be made entirely consistent with constitutions adopted from
the top down and not susceptible to democratic change. I make reference to
them in order to stress that democratic legitimacy, as used in this book, is a
broader idea than ‘legitimacy’ as such. Its ‘democratic’ element connects the
idea of legitimacy to constituent power and to democracy and its corollaries of
openness and popular participation. There are, however, degrees of democratic
legitimacy, and the susceptibility to democratic re-constitution should be
understood as the minimal condition of democratic legitimacy.
That is to say, there are political practices and institutional forms that
could increase the democratic legitimacy of a constitutional regime well above
this minimum. For example, a ‘fully’ democratically legitimate constitutional
regime would have originated in a democratic constitution-making act, one
characterised by intense episodes of popular participation and by the absence
of any external or internal limits on the content of the new constitution (other
than those self-imposed by the constitution-maker, such as those limits based
on a country’s political culture). In other words, a constitutional regime whose
past, present and future point towards the realisation of the second dimension
of democracy. However, most constitutional regimes (especially, but not only,
those with very old constitutions) would not even come close to meeting the
requirement of a democratic pedigree. As will be argued in Chapter 6, a
10 Introduction
constitutional regime that lacks a democratic pedigree can rest its claims to
democratic legitimacy in its susceptibility to re-constitution through mecha-
nisms that facilitate the exercise of constituent power and that attempt to
replicate a democratic constitution-making episode.
For the susceptibility to democratic re-constitution to mean something, it
must have actual institutional implications. In other words, the constitutional
forms must provide the means for constituent power to reappear after the
constitution is in place and, if needed, to put the entire institutional arrange-
ment into question. Put briefly, this means that the rights and institutions
necessary for the very possibility of democracy and for the exercise of constit-
uent power must be in place (whatever the form those rights and institutions
take). Of course, there could be a political revolution in which, through an act
of popular participation, those guarantees are abolished. But even when the
constituent subject is free to adopt any constitution it wants, the abolition of
these rights and institutions would be inconsistent with the future exercise of
constituent power (eliminating the possibility of democratic re-constitution)
and therefore with any prospects of democratic legitimacy. Like democracy,
constituent power negates itself when it violates the conditions that make it
possible.
Beyond the recognition of basic rights of political participation, a constitu-
tional regime must have some mechanism in place (in addition to the ordi-
nary amendment procedure) designed to allow citizens to propose, deliberate
and decide upon fundamental changes to the constitution. These institutions
(the specifics of which will be discussed in Chapter 8) should allow for
the greatest possible degree of popular participation in constitutional change
and, as facilitators of the exercise of constituent power, must not be subject to
any substantive limits originating in the established juridical order. Several
recently adopted Latin American constitutions contemplate such a mecha-
nism: the Constituent Assembly convened ‘from below’ (that is, through the
collection of signatures), activated through popular referendum and author-
ised to deliberate and decide upon fundamental changes to the constitutional
regime without being limited by any form of positive law (and whose proposals
need to be ratified by the electorate before they come into effect). As will be
seen in Chapter 7, this conception of democratic legitimacy would also require
that constitutional changes of a ‘fundamental’ nature (i.e., those that amount
to an act of re-constitution) take place through the most participatory pro-
cesses possible. A constitutional regime consistent with these ideas would be
based on a weak form of constitutionalism, and would assume that, at least
episodically, democracy should triumph over constitutionalism.
Weak constitutionalism
Contemporary constitutional theory has developed three major approaches to
deal with the tension between constitutionalism and democracy (these
approaches will be examined in more detail in Chapters 3 and 4). The first
Introduction 11
approach, usually associated with Ronald Dworkin, negates the existence of
any tension between these ideals.20 It sees democracy realised in a ‘constitu-
tionalist’ constitution, one that contains what are taken to be the right abstract
principles and that should therefore be put out of the scope of democratic
politics. The second approach, most famously put forward by Jeremy Waldron,
rejects the Dworkinian identification of constitutionalism and democracy.21 It
insists that in the light of disagreement about the meaning of rights, it should
be ‘the people’, usually acting through their representatives, who determine the
content of the constitution. This approach is thus incompatible with supreme
constitutions but, an institutional level, recommends a system of parliamen-
tary sovereignty and does not call for a participatory approach to constitu-
tional change. The third approach, best exemplified in the work of Bruce
Ackerman, rejects the Waldronian identification of the people and the legis-
lature and insists on the sovereignty of the former over any constitutional
arrangement.22 However, instead of proposing mechanisms that would facili-
tate the people’s participation in the re-creation of the fundamental laws, it
replaces the flesh-and-blood human beings who live under the constitutional
regime with a mythical ‘People’, whose acts are to be identified ex post facto.
Weak constitutionalism is inconsistent with these three major approaches. In
what follows, I outline the basic premises of a theory of weak constitutionalism,
which will be further developed in Chapter 8. First, unlike the conception of
constitutionalism under which most constitutional regimes operate, weak
constitutionalism does not maintain the precedence of a constitution that is
presumed to rest in the correct abstract principles over the constituent power of
the people. Instead of privileging the supremacy of the former through a consti-
tution that is difficult or impossible to change or of privileging the supremacy
of the legislature by allowing it to alter the constitution by simple majority rule,
it seeks to leave the door open for future constituent activity. Second, weak
constitutionalism rests on a distinction between the two dimensions of democ-
racy and, instead of seeing democracy exhausted at the level of daily governance,
aspires to the realisation of democracy at the level of the fundamental laws:
constituent episodes in which new or radically transformed constitutions are
produced through the most participatory mechanisms possible. Third, weak
constitutionalism mandates a constitutional regime consistent with the prin-
ciples of democratic openness and popular participation. It does not insist on the
preservation of particular constitutional forms, but seeks to create the conditions
of possibility for their occasional democratic transformation.
Fourth, weak constitutionalism does not see constituent power as a threat. In
that respect, it does not look at fundamental constitutional change with suspi-
cion, but as an opportunity for improving the lives of citizens. Moreover, it does
not see the exercise of constituent power as restricted to situations of extreme
governmental abuse or as forever channelled through the ordinary process of
constitutional reform, but as susceptible to being exercised at any moment after
a constitution is in place through highly participatory procedures. Fifth, weak
constitutionalism does not approach all constitutional changes in the same way.
12 Introduction
It assumes that some changes are more fundamental than others, and that some
partial revisions of the constitution may amount to the creation of a new consti-
tutional regime. Accordingly, weak constitutionalism is consistent with the
doctrine of implicit limits on the ordinary power of constitutional reform,
according to which fundamental constitutional changes cannot be adopted by
the ordinary institutions of government. Sixth, weak constitutionalism does
not see citizens just as human beings with rights that take part in politics
through voting, but as those who are allowed to participate in the (re)positing
of the norms that govern the state. In other words, it sees citizens as those who
participate in the democratic legitimation of the constitutional regime and
know that, despite all the imperfections of such an order, it can be changed.
The presence of that possibility, I believe, is what determines the democratic
legitimacy of a constitutional regime. Or so this book will argue.
Outline of the argument

The book is divided into two main parts, with the first part corresponding to
Chapters 2 to 4. These chapters seek to show that there is a real tension
between constitutionalism and democracy and they defend a particular inter-
pretation of the democratic ideal. Chapter 2 presents the traditional concept
of constitutionalism and identifies as its main characteristic an aspiration to
the permanence of the constitutional regime and a fear of constitutional
change. It then considers some possible defences of that traditional concept,
particularly the idea that a rigid constitution serves the function of protecting
democracy from itself, for example, by entrenching certain rights. The chapter
rejects that view, suggesting that even if there are some rights that are neces-
sary for democracy to exist, their entrenchment might not be necessary for
them to be respected. Moreover, at least in the context of the typical (written)
constitution, the entrenchment of rights comes accompanied with the
entrenchment of other (not democracy-related) principles and institutions
that are also put outside the scope of democratic politics.
Chapter 3 examines two influential accounts of democracy: Jeremy
Waldron’s procedural approach and Ronald Dworkin’s substantive one. The
chapter argues that, in contrast to what those approaches suggest, democracy
is not exhausted by a constitution that provides citizens with the ability to
participate in the creation of ordinary laws through the election of a repre-
sentative assembly or by living under a constitutional regime that treats all
human beings with equal concern and respect. Democracy, it is argued, is a
multidimensional ideal. The second dimension of democracy, democracy at
the level of the fundamental laws, requires that citizens are allowed to par-
ticipate in the creation and modification of their constitution. Traditional
procedural and substantive approaches to democracy, it is argued, have not
paid sufficient attention to this second dimension. The chapter concludes by
maintaining that, like Sheldon Wolin’s fugitive democracy, democracy at the
level of the fundamental laws is episodical by nature, which makes its exercise
Introduction 13
well suited to forms of popular participation that are not possible or desirable
at the level of daily governance.
Chapter 4 presents a conception of democracy that rests on two basic prin-
ciples. These principles – democratic openness and popular participation –
mandate that all laws, including the fundamental laws, remain permanently
susceptible of being reformulated and replaced, and that those changes take
place through highly participatory procedures. These two principles acquire a
special importance in the context of democracy at the level of the fundamental
laws, since the episodical nature of the latter makes their implementation
possible. The chapter then considers the ways in which influential conceptions
of constitutionalism negate these two principles. In particular, the chapter
focuses on how Wil Waluchow’s defence of living-tree constitutionalism
is inconsistent with the basic thrust of the principle of democratic openness,
and how Bruce Ackerman’s conception of constitutional politics and Jeffrey
Goldsworthy’s defence of parliamentary sovereignty move the actual partici-
pation of citizens in constitutional change to a secondary plane.
The second part of the book comprises Chapters 5 to 9. These chapters
explore the ways in which the conception of democracy presented in the first
part of the book, when combined with the concept of constituent power, gives
rise to an attractive theory of democratic legitimacy. Chapter 5 introduces the
theory of constituent power by considering George Lawson’s and John Locke’s
theories of resistance, according to which the people’s power to re-constitute
government is only triggered in cases of extreme governmental abuses. It then
contrasts these theories with Emmanuel Sieyes’ and Carl Schmitt’s writings
on constituent power, identifying in the conception of the latter two authors
a stronger democratic potential. The chapter concludes by examining the
treatment that constituent power has received in the Anglo-American and
Latin American constitutional traditions.
Chapter 6 builds on the theory of constituent power and in the conception
of democracy presented in the first part of the book, and outlines a theory of
democratic legitimacy. It begins by introducing different approaches to the
idea of legitimacy (the legal, sociological and philosophical approaches) and,
through an examination of A. J. Simmons’ work, by distinguishing legitimacy
from the related concepts of authority and justification. The chapter then
brings legitimacy, democracy and constituent power together, developing a
set of criteria that must be met for a constitutional regime to be considered
legitimate from a democratic perspective. First, a constitutional regime should
have a democratic pedigree and, second, it must not close the door to the future
re-emergence of constituent power. The chapter argues that a constitutional
regime that cannot meet the first requirement might still have a claim to
democratic legitimacy provided that it meets the second. In that sense, the
second requirement (susceptibility to democratic re-constitution) is to be
understood as the basic condition of democratic legitimacy.
Chapter 7 discusses the doctrine of implicit limits to the ordinary power of
constitutional reform. It begins by examining the thought of Carl Schmitt
14 Introduction
and John Rawls on this topic. Both authors provide arguments in favour of
this doctrine and defend the distinction between ordinary and fundamental
constitutional change. This distinction is important since only the latter kind
of change amounts to an act of re-constitution. Accordingly, it must take
place through (participatory) procedures that can be understood as facilitating
the exercise of the people’s constituent power. Otherwise, fundamental
changes could be adopted in ways that contradict both the idea of the constit-
uent power of the people and the conception of democratic legitimacy
presented in Chapter 6. The chapter then considers the ways in which some
courts have developed the doctrine of implicit limits to constitutional reform,
ruling that constitutional changes of a fundamental nature cannot take place
through the ordinary (constituted) institutions of government. Particular
emphasis is laid on the jurisprudence of the Colombian Constitutional Court.
Chapter 8 develops the idea of weak constitutionalism and considers the types
of mechanisms of constitutional change consistent with it. It explores
the reasons why fundamental constitutional changes (i.e., changes that amount
to the creation of a new constitution, to an act of re-constitution) should
take place through extraordinary constitution-making bodies, a view that
was present both during the Glorious Revolution of 1688 as well as in
eighteenth- and nineteenth-century North America. The chapter then argues
that although an extraordinary assembly is a superior mechanism of constitu-
tional change, not all extraordinary assemblies are equally democratic and
therefore appropriate means for the exercise of constituent power. The chapter
presents the Constituent Assembly, convened from below (present in the
constitutions of Bolivia, Ecuador and Venezuela), as the type of assembly
that weak constitutionalism would recommend (and which could be made
compatible with both written and unwritten constitutions).
Finally, Chapter 9 is devoted to explaining and defending the distinction,
found in the work of Carl Schmitt, between the activation and the execution of
constituent power. While the Constituent Assembly convened from below
can be seen as a mechanism for the execution of constituent power, its convo-
cation (as well as the possibility of any exercise of constituent power) depends
on the existence of a citizenry that, by engaging in informal political practices
(such as massive demonstrations, civil disobedience, informal assemblies,
political revolutions, etc.), creates the political climate necessary for constit-
uent power to be activated. The chapter concludes by exploring this distinc-
tion in light of the recent ‘Arab Revolutions’ and the events surrounding (and
resulting from) the recent protests in Greece, Spain and Iceland. Chapter 10
offers a brief general conclusion.
Notes
1 Unless otherwise indicated, I will use the terms and phrases ‘constitutionalism’,
‘liberal constitutionalism’, and ‘traditional conception of constitutionalism’
interchangeably.
Introduction 15
2 See for example, Jürgen Habermas, Between Facts and Norms: Contributions to a
Discourse Theory of Law and Democracy, Cambridge: MIT Press, 1996; John Hart
Ely, Democracy and Distrust: A Theory of Judicial Review, Cambridge: Harvard
University Press, 1980.
3 Through the book, I use the word ‘citizens’ and ‘citizenry’ in the widest sense
possible; that is, to refer to all those who are subject to a constitutional regime.
4 See Thomas Jefferson, ‘Letter to Samuel Kercheval, July 12, 1816’, in Merrill D.
Peterson (ed), The Portable Thomas Jefferson, New York: Penguin, 1975, pp 558–
559; Clinton Rossiter (ed), The Federalist Papers no. 49, New York: New
American Library, 1961.
5 See for example Ronald Dworkin, Freedom’s Law: The Moral Reading of the
American Constitution, Cambridge: Harvard University Press, 1996; Jeremy
Waldron, Law and Disagreement, New York: Oxford University Press, 1999; Jack
M. Balkin, ‘Original Meaning and Constitutional Redemption’, Constitutional
Commentary 2007, vol 24, p 427.
6 See for example Bruce Ackerman, We the People: Foundations, Cambridge:
Harvard University Press, 1991; Akhil Reed Amar, ‘The Consent of the
Governed: Constitutional Amendment Outside Article V’, Columbia Law Review,
1994, vol 94, p 457.
7 I developed this argument further in Joel I. Colón-Ríos, ‘The Three Waves of
the Constitutionalism-Democracy Debate in the United States (And an Invita-
tion to Return to the First)’, Willamette Journal of International Law and Dispute
Resolution, 2011, vol 18, p 1.
8 See for example Donald Lutz, ‘Toward a Theory of Constitutional Amendment’,
in Sanford Levinson (ed), Responding to Imperfection: On the Theory and Practice of
Constitutional Amendment, Princeton: Princeton University Press, 1995; Sanford
Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And
How the People can Correct it), New York: Oxford University Press, 2006; Stephen
M. Griffin, ‘And the Nominee is . . . Article V’, in William Eskridge
and Sanford Levinson (eds), Constitutional Stupidities, Constitutional Tragedies,
New York: New York University Press, 1998.
9 See Benjamin R. Barber, Strong Democracy: Participatory Politics for a New Age,
Berkeley: University of California Press, 1984; Allan C. Hutchinson, The
Province of Jurisprudence Democratized, Oxford: Oxford University Press, 2008.
10 Merrill D. Peterson (ed), Thomas Jefferson Writings, New York: Library of America,
1984, p 983.
11 Emmanuel Joseph Sieyes, What is the Third Estate?, New York: Praeger, 1963;
Carl Schmitt, Constitutional Theory, Durham: Duke University Press, 2007.
12 Sieyes, What is the Third Estate?, p 127.
13 Schmitt, Constitutional Theory, p 125.
14 George Lawson, Politica Sacra et Civilis, Cambridge: Cambridge University
Press, 1992; John Locke, Two Treatises of Government: A Critical Edition with an
Introduction and Apparatus Criticus, Cambridge: Cambridge University Press,
1967.
15 John Rawls, Political Liberalism, New York: Columbia University Press, 2005,
p 231; Christopher Zurn, Deliberative Democracy and the Institutions of Judicial
Review, Cambridge: Cambridge University Press, 2007, p 92.
16 Andreas Kalyvas, ‘The Basic Norm and Democracy in Hans Kelsen’s Legal and
Political Theory’, Philosophy and Social Criticism, 2006, vol 32(5), p 589.
17 Antonio Negri, Insurgencies: Constituent Power and the Modern State, Minneapolis:
University of Minnesota Press, 1999, p 1.
18 François Venter, ‘Constitution Making and the Legitimacy of the Constitution’,
in Antero Jyränki (ed), National Constitutions in the Era of Integration, The Hague:
Kluwer Law International, 1999, p 21.
16 Introduction
19 Hans Kelsen, ‘The Function of a Constitution’ in Richard Tur et al (eds), Essays
on Kelsen, Clarendon Press: Oxford, 1986; Hans Kelsen, General Theory of Law
and State, Cambridge, MA: Harvard University Press, 1949.
20 Dworkin, Freedom’s Law.
21 Waldron, Law and Disagreement.
22 Ackerman, We the People.
2 The end of constitutionalism
There are many definitions of constitutionalism. These definitions usually

associate constitutionalism with a number of ideas: ‘restrained and divided’
political power,1 adherence to the rule of law,2 the protection of fundamental
rights3 and the principle of constitutional supremacy4 (which is based on
a distinction between ordinary and higher laws5). These ideas, although
sometimes presented as equivalent to constitutionalism itself, are better
understood as ways of achieving constitutionalism’s main objective: limiting
political power. Constitutionalism seeks to subject political decision-makers
to constitutional principles that are placed outside the scope of their ordinary
legal faculties. A regime that respects the ideal of constitutionalism is subject
to established law; it is a regime controlled by a number of rules, procedures
and structures that create important limits on the political power of govern-
ments and their peoples.6 Thus, for example, dividing power among different
branches of government is typically seen as an effective way of achieving that
objective, since such an institutional arrangement would avoid the concentra-
tion of power in one institution or individual. Respect for the rule of law,
understood as requiring at the very least a predictable legal system – one that
operates according to stable and clear laws – promotes constitutionalism’s
main objective further by offering protection against arbitrary rule.7
Guaranteeing the enjoyment of a set of fundamental rights (sometimes
enforceable by courts) protects individuals from state interference in large
areas of their private life and allows citizens to exercise different degrees of
control over government policies through ordinary political participation. In
order to protect rights and other institutions that promote the existence of a
limited government from day-to-day majorities, constitutionalism is gener-
ally understood as mandating that they are entrenched in a constitution that
is distinct from ordinary legislation: a constitution that is to be considered
higher law and whose modification is subject to special procedures (even
though a regime that operates under a flexible unwritten constitution could
also effectively limit political power).8 That these are the ideas and institu-
tional arrangements that characterise modern constitutionalism should not be
a matter of controversy; in fact, they do not seem like bad ideas at all. But this
is not the whole story. Constitutionalism is also characterised by a Lycurgian9
obsession with permanence, a fear of constitutional change according to
which a constitution that contains the right content – a good, constitution-
alist constitution – should also be a finished constitution. That is, a constitu-
tion that might be improved by correcting some historical mistakes here and
there (and that might evolve and be expanded through judicial interpreta-
tion), but whose fundamental principles and the governmental structures it
creates should be more or less immutable and therefore placed beyond the
scope of popular majorities. It is this idea which is at odds with democracy.10
The aspiration to permanence (or the fear of

constituent power)
This component of constitutionalism has been defended at different moments
and with different degrees of emphasis. In eighteenth-century France, it was
exemplified when Isaac Le Chapelier, the Jacobin jurist, claimed that “the
revolution was finished”, as there were “no more injustices to overcome, or
prejudices to contend with”.11 Some years later, Napoleon Bonaparte issued a
similar declaration: “Citizens, the revolution is determined by the principles
that began it. The constitution was founded on the sacred rights of property,
equality, freedom. The revolution is over.”12 The aspiration to permanency
that drove Le Chapelier’s and Napoleon’s dicta is alive and well and, perhaps
today more than ever, continues to inform liberal constitutionalism. One
must not think, however, that it is only the entrenchment of basic liberal
rights that drives this ideology. The idea is that to alter the constitution in
important ways is to look for trouble, to play with the stability of the political
system and to risk the precious ideal of the rule of law.
In American constitutional thought, one of the first formulations of this
view can be identified in James Madison’s writings, particularly in the context
of his famous response to Thomas Jefferson’s ‘dangerous’ ideas about constitu-
tional change. Jefferson, it is well known, despised the idea of perpetual
constitutions. He complained that “[s]ome men look at constitutions with
sanctimonious reverence, and deem them like the ark of the covenant, too
sacred to be touched”.13 In his view, “human institutions must go hand in
hand with the progress of the human mind”14 and those living under a consti-
tutional regime must be allowed to correct the ‘mistakes’ of previous genera-
tions. Jefferson even suggested that at set periods of time (every time a new
generation came into existence, which occurred every 19 years according to
his interpretation of the European tables of mortality), all laws and institu-
tional arrangements should lapse and periodic constitutional conventions
convened.15 Those conventions would guarantee that the present generation
could exercise the “right to choose for itself the form of government it believes
most promotive of its own happiness”.16
Madison disagreed with most of this. He maintained that Jefferson’s ideas
about constitutional change and constitutional conventions came accompa-
nied with “[t]he danger of disturbing the public tranquility by interesting too
The end of constitutionalism 19
strongly the public passions”.17 It is not that Madison defended the idea that
a constitution could (or should) never be changed.18 However, he believed that
Jefferson’s proposal suggested to the citizenry that their current system of
government was somehow defective, depriving the government of “that
veneration which time bestows on everything, and without which perhaps the
wisest and freest governments would not possess the requisite stability”.19
Thus, instead of periodic constitutional conventions that opened the constitu-
tion to the “decisions of the whole society”,20 Madison favoured a complicated
amendment procedure, one that involved a series of extraordinary majorities
at the federal and state levels. In other words, an amendment procedure that
would make constitutional change difficult and unlikely, and whose usual
protagonists are not ordinary citizens (that would simply be too risky) but
state officials sitting in federal and state legislatures. Among US constitution-
alists, no one has followed Madison’s advice better than Kathleen Sullivan.
Sullivan’s critique of what she calls Amendmentitis, or the unjustified desire
to amend a constitution, is not very far away from the idea that a constitution
should never be altered. For Sullivan, amendments “are dangerous apart from
their individual merits”.21 Not surprisingly, she maintains that Jefferson’s
proposals about constitutional change were rejected for good reasons.22
According to Sullivan, a frequently amended constitution decreases the
people’s confidence that their constitutional system is stable and undermines
the idea of having a constitution in the first place. Amending the constitution
frequently also obscures the distinction between constitutional and ordinary
politics; making the supreme law lose its fundamental character and putting
at risk its coherence and generality. Finally, amending the constitution might
‘politicize’ it, and “the more a Constitution is politicized the less it operates
as a fundamental charter of government”.23 For these and other reasons,
Sullivan concludes that the constitution should be amended “only reluctantly
and as a last resort”.24 But the disease Sullivan identifies is not that common.
While there are well known US constitutional theorists that, for different
reasons, argue against the rigidity of Article V (the US Constitution’s amend-
ment rule),25 it is the Lycurgian approach to constitutions and constitutional
change that is well established in US constitutional theory and practice
(although usually presented in a more subtle way than the one that character-
ises Sullivan’s arguments).26
This view is best exemplified in the writings of scholars engaged in a defence
of constitutionalism’s democratic credentials. Christopher Eisgruber and
Stephen Holmes provide two good examples. Eisgruber argues that self-
government is perfectly compatible with constitutional forms that are
protected through an inflexible amendment procedure. “If a polity is consumed
with endless debates about how to structure its basic political institutions,”
writes Eisgruber, “it will be unable to formulate policy about foreign affairs,
the economy, the environment, zoning, and so on.”27 For Eisgruber, rigid or
inflexible constitutions can be understood as a practical device for imple-
menting a non-majoritarian (and superior) conception of democracy. Flexible
amendment procedures, on the contrary, may encourage “improvident reforms”
that would encumber later generations, and allow present-day majorities to
consolidate power at the expense of the whole people.28 Eisgruber’s approach
is, in the last instance, profoundly Madisonian: the constitutional text is better
left alone. Moreover, if any adjustments are needed, they can always be achieved
through interpretation rather than through formal amendments (in this sense,
it is not surprising that an important part of Eisgruber’s book is dedicated to
a defence of judicial review of legislation).
This kind of approach finds an important theoretical backbone in Holmes’
influential defence of constitutional pre-commitment. Holmes argues that the
fact that a constitution is difficult to amend does not render it inconsistent
with basic democratic principles. What rigid constitutions do is to serve as a
guarantee that future generations will not eliminate the possibility of the
formation of a democratic public will.29 By setting up institutions that allow
citizens to deliberate about important matters, constitutions become instru-
ments of self-government: techniques by which citizens rule themselves.30 As
with the rules of a game or the rules of grammar, constitutions are primarily
enabling: they allow a democratic form of political life to take place. And just
as it would make little sense to change the rules of grammar or the rules of a
game while writing or playing, it does not make much sense to worry about
the reformulation of these enabling norms. Besides the fact that it would be
great if all a constitution did was to enable democracy to take place (a point I
will consider later in this chapter), it is fair to say that Holmes’ defence of pre-
commitment is an endorsement of constitutionalism’s Lycurgian tendencies:
constitutional change should be difficult and unlikely, a constitution is simply
too valuable to be meddled with.
To see how this conception manifests itself in constitutional practice, one
only has to look at the amendment provisions of most modern constitutions.
These provisions usually involve a set of requirements that are characterised
by being more difficult to meet than those followed when the constitution
was originally adopted. That is to say, while most constitutions are adopted
by some form of majority rule, constitutional amendments are traditionally
associated with supermajorities and other obstacles designed to decrease the
possibility of important transformations.31 Some constitutions even contain
‘eternity clauses’ that place certain provisions outside the scope of the amend-
ment procedure, thus highlighting the fear of constitutional change that char-
acterises constitutionalism.32 Unwritten constitutions that operate under the
doctrine of parliamentary sovereignty present an important exception to this
rule: they do not subject important constitutional transformations to any
formal requirements that differ from the ones that need to be met for the
adoption of ordinary laws.33 We will see in the next chapter, however, that
unwritten constitutions present important difficulties when looked at from
the perspective of democracy at the level of the fundamental laws.
By making constitutional change difficult and unlikely, constitutions
also make popular constitutional change difficult and unlikely. That is to
say, the amendment processes of most liberal constitutions are not character-
ised by heightened opportunities for popular participation (other than the
occasional vote in a referendum). By aspiring to be the exclusive means
through which a juridical system regulates its own transformation, typical
amendment rules negate ordinary citizens’ ability to transform their constitu-
tion in important ways. In short, they prevent future exercises of constituent
power (understood as the faculty of positing new or radically transformed
constitutions through participatory procedures) from taking place.
In Chapter 4, I will consider in more detail different ways in which the
democratic ideal is negated by constitutionalism’s aspiration to permanency.
But before developing this point, it is necessary to explore in more depth consti-
tutionalism’s tendency to make constitutional change difficult and unlikely,
and the possible democratic justifications of this tendency. That is to say, there
is a way of defending the Lycurgian approach from a democratic standpoint: by
diminishing the probabilities of important constitutional transformations,
constitutionalism protects democracy from itself. More specifically, there are
some principles (which take the form of fundamental rights) that are necessary
for the very existence of democracy. Therefore, the argument goes, making a
constitution difficult to change (and only changeable by ordinary government)
in order to protect those principles, can be made perfectly consistent with the
democratic ideal. I turn to examining (and rejecting) this view below.
Constitutionalism as the protector of democracy

As noted earlier, one of the ways through which constitutionalism seeks to
limit political power is through the entrenchment of fundamental rights in a
supreme constitution. This usually involves placing rights into a constitution
that is difficult to change (at least more difficult to change than ordinary legis-
lation) and giving the judiciary the power to strike down laws that conflict
with those rights. Constitutional theory has long been occupied with devel-
oping arguments that defend or attack the democratic or undemocratic char-
acter of this kind of arrangement. For instance, Ronald Dworkin has argued
that the United Kingdom should entrench fundamental rights in Bill of
Rights and give judges the power to invalidate legislation inconsistent with
those rights.34 And he defends this idea on democratic grounds: there is
nothing undemocratic about protecting the rights that are required for
democracy to exist.35 Others, like Jeremy Waldron, oppose the very idea of
entrenching rights. Waldron has even rejected the idea of enacting “any
canonical list of rights, particularly if the aim is to put that canon beyond the
scope of ordinary political debate and revision”.36 Moreover, he insists that
whenever there is a disagreement about rights, it should not be judges but the
people whose rights are in question (acting through their elected representa-
tives) to be the ones to decide what rights they have.37
Now, the institution of an entrenched and supreme bill of rights, by itself,
is not central to the argument of this book. Even according to traditional
constitutional theory, it is the people, in the exercise of their constituent
power, who have the faculty to create a constitution and, if that is their wish,
of entrenching fundamental rights and giving the judiciary the power to
strike down legislation that is determined to be inconsistent with those
rights.38 Even under that view, entrenched and supreme bills of rights only
bind day-to-day legislative majorities, not the citizens themselves, who are
said to retain the right to create a new constitution and thus to alter the rights
recognised in an old one (even if they have no way of doing that as a matter of
political reality).39 So, it is of little interest here whether legislatures or courts
should have the final word regarding the meaning and scope of fundamental
rights, nor is it a problem that legislatures are not allowed to alter rights
through the same procedures they use for the adoption of ordinary laws. This
book is not about limits to ordinary law-making institutions, but about
the lack of opportunities for popular constitutional change. Nevertheless, at
the heart of arguments in favour of entrenched and supreme bills of rights lies
an important claim: that constitutionalism, by protecting certain principles,
seeks to protect democracy from itself.
That idea is important for at least two reasons. First, it suggests that funda-
mental rights have such an important connection to democracy that they are
constitutive of it: democracy cannot exist in their absence. Second, since some
rights are constitutive of democracy, the constitution that contains them
should be difficult to change (and here ‘difficult to change’ usually means
difficult to change for anyone, not just for legislatures) so that the abolition of
democracy is avoided. Someone who accepts these ideas would probably be
uncomfortable with giving ordinary citizens the means of engaging in
profound constitutional transformations: there is always a chance that
the people will decide to abolish fundamental rights and with them the
entire democratic system of governance. Constitutionalism’s aspiration to the
permanence of the constitutional regime can thus be defended from a demo-
cratic perspective. If one wants democracy to exist over time, it is a good idea
to restrain everyone’s political power so they cannot, intentionally or uninten-
tionally, abolish democracy. However, as I will argue below, even if one
accepts that some rights are necessary for the existence of democracy, a
commitment to the ideal of the ‘rule by the people’ mandates that the content
of these rights be determined (and is susceptible of being re-determined) by
those subject to the constitutional regime.
The question of whether ordinary citizens should be allowed to ‘meddle’
with the fundamental rights contained in a constitution, as well as the
dangers of the abolition of democracy through participatory procedures,
will be addressed in Chapter 4 and will be developed through the rest
of the book through a consideration of the theory of constituent power. As
announced in the introduction, this book will argue that the democratic
legitimacy of a constitutional regime rests precisely on whether it is suscep-
tible to re-constitution. Nevertheless, it is important to consider here the
relationship between rights and democracy, since that is where an important
part of constitutionalism’s claim to a democratic pedigree lies.
Fundamental rights come in two main forms,40 and both of them can be
said to have different types of connections to democracy. On the one hand,
political rights, which are said to be constitutive of the very possibility of a
democratic process; these are rights of political participation. On the other
hand, individual rights that protect persons from state interference and which,
although not having an obvious connection to democracy, can be seen as
necessary for citizens to engage in any meaningful form of political participa-
tion. I will briefly examine below the ways in which both types of rights can
be understood as connected to the democratic ideal, and address the question
of whether in virtue of those connections they should be out of the scope of the
decision-making power of popular majorities.
Politics, individuals and democracy

Political rights allow citizens to participate, individually and collectively, in
order to attempt to solve their problems and to influence (and sometimes to
determine) state policies. These rights, which are generally characterised as
rights of political participation, are usually identified with the right to vote,
but can be understood as including the right to freedom of assembly and the
freedom of expression.41 It is not difficult to see how these rights are connected
– in fact, fundamentally connected – to the democratic ideal. Protecting every-
one’s right to vote, for example, seems to be necessary for any electoral exercise
to be considered democratic. Similarly, without the right to freely associate
with others, ordinary citizens would not be able to create and participate in
political organisations and social movements that deliberate and make proposals
about the present and future of the polity. And without the right to speak one’s
mind freely, any exercise of democratic deliberation would be a sham.
When constitutionalism promotes the permanence of a constitution that
entrenches political rights, the argument goes, it is protecting democracy or,
as Holmes put it, protecting “a procedural document securing the precondi-
tions for rational consent and dissent, public debate, conflict resolution without
violence and the thoughtful and cumulative revision of the constitutional
framework itself”.42 Individual rights, on the other hand, are more difficult to
connect to democracy. They create a private sphere in which the state cannot
intervene, a dimension of the life of citizens that is not for others to intrude in.
These rights are generally taken to include the right to privacy, freedom of
conscience and the right to private property. Although Karl Marx once char-
acterised these rights as those of the “the restricted individual, withdrawn
into himself . . . and separated from the community”,43 and in that sense
made them appear to be antithetical to the democratic ideal, there are ways of
understanding these rights as fundamental to the existence of democracy.
Individual rights, after all, can be seen as a necessary condition for citizens’
full participation in a democratic polity: without a secure place in the world
to think and act free of state interference, individuals can hardly form political
opinions and develop their capacities to deliberate with others. For instance,
Frank Michelman has argued that the right to privacy can be understood as a
precondition to meaningful political participation as it protects “the intimate
associations through which personal moral understandings and identities are
formed and sustained”.44 Like other republicans, he also maintains that the
right to private property can be thought of as necessary “to imbue citizens
with the independence” to engage in popular self-government.45 More
recently, Corey Brettschneider has argued that freedom of conscience is essen-
tial to democracy because it “ensures that self-rulers will be able to think
for themselves about political problems without being subject to external
coercion”.46
Nevertheless, the most ambitious attempt to demonstrate that both polit-
ical and individual rights are fundamentally connected to democracy is Jürgen
Habermas’ co-originality thesis. According to Habermas, citizens can only
make proper use of their public autonomy, of their ability to make laws in the
exercise of their political rights, “if they are sufficiently independent in virtue
of an equally protected private autonomy in their life conduct”.47 Nevertheless,
this private autonomy, which finds its legal expression in individual rights
that protect all citizens equally, can only exist if “they make an appropriate
use of their political autonomy”.48 Citizens can thus only exercise their
political rights properly if they are able to form their opinions and personali-
ties in a secure private sphere; at the same time, they can only enjoy individual
liberties if they exercise their political rights in order to determine the specific
interests that need protection through individual rights. In a nutshell, “private
and public autonomy require each other”.49 (Habermas also considers neces-
sary, under certain situations, social and economic rights in contexts in which
their implementation is required to provide citizens with the opportunity to
exercise other rights.50)
Only when both types of rights are fully realised are citizens able to see
themselves both as authors and addressees of the law: citizens become authors
of the law by virtue of the exercise of political rights, as well as its addressees
by possessing a private autonomy that serves as a boundary to law. However,
while Habermas believes that both political and individual rights are neces-
sary in a democratic legal system, he insists that the specific content of these
rights needs to be determined by the people through democratic procedures
and cannot be imposed on them or determined by a priori moral norms.51
Moreover, the citizenry should be able to (re)determine the specific content of
the fundamental rights when they consider it necessary, even if that means
that they might occasionally make decisions that negatively affect democratic
rights.52 For Habermas, the act of founding a constitution is not a one-time
event in which a set of rights is permanently fixed. “[L]ater generations,” he
writes, “have the task of actualizing the still untapped normative substance of
the system of rights,” in a dynamic and self-correcting process “which is not
immune to contingent interruptions and historical regressions”.53 This is why
Habermas has expressed reservations about John Rawls’ theory of justice and
why he thinks citizens should be able “to conceive of the constitution as a
project”.54 For Habermas, Rawls’ theory can be taken to imply a society in
which citizens “cannot reignite the radical democratic embers of the original
position in the civil life of their society . . . and they find the results of the
theory already sedimented in the constitution”.55
It can be granted that authors such as Michelman, Brettschneider and
Habermas provide us with persuasive arguments establishing important
connections between democracy and individual rights. And there seems to be
little doubt that political rights have a fundamental connection to the practice
of democracy. It is not clear, however, that these connections explain or justify
constitutionalism’s aspiration to the permanence of the constitutional regime
(as noted earlier, this aspiration tends to be institutionally expressed by a
demanding amendment rule that also places the process of constitutional
reform in legislatures rather than in ordinary citizens). They do not provide a
‘democratic’ justification for the aspiration to permanency for three main
reasons. First, any right that has significant links to democracy might be inter-
preted by government (either by the legislature or by the judiciary) in ways
that greatly exceed these connections. As a result, the content of the law could
be restrained by ‘fundamental rights’, but by fundamental rights that have
little or no connection to democracy. For example, one can agree that freedom
of expression is necessary for any meaningful form of democratic deliberation.
However, when that right is understood by government as protecting corpor-
ate funding of political campaigns,56 it is not clear why popular majorities, if
they wish to, should not be able to alter the constitution through democratic
procedures in order to render that interpretation ineffective.
Thus, if one is to take to its ultimate consequences the idea that constitution-
alism’s aspiration to permanence seeks to protect democracy from itself, then a
constitution should not entrench fundamental rights as such, but only the inter-
pretations of those rights (and institutions) in whose absence there cannot be a
democracy.57 If this were possible, then one would have a constitution in which
everything would be within the scope of the decision making power of popular
majorities, with the only exception of those constitutional forms that are neces-
sary for democracy to exist. In fact, the constitution would also have to entrench
those social and economic rights without which the exercise of other funda-
mental rights would be impossible – after all, it is difficult to engage in political
speech when struggling to find shelter. It is, of course, highly unlikely that a
society will come to agree on which specific constitutional forms, which mani-
festation of fundamental rights, will perfectly embody democracy’s conditions
of possibility, and as such remain permanently unchangeable.
Second, even if there is such a minimal conception of rights, their protec-
tion does not necessarily depend on their entrenchment, but on the fact that
they are respected as a matter of political practice. For example, in countries
with uncodified constitutions, such as New Zealand, rights can be altered and
abolished just as any other ordinary law. Nevertheless, New Zealanders enjoy
fundamental rights to the same extent as other liberal democracies. Some
other countries might entrench rights through the most demanding amend-
ment rules possible, but routinely violate them.58 This suggests that in the
end, the enjoyment of fundamental rights (in whatever form they take) might
be more a matter of political culture than of constitutions and laws.59 Third, a
democratic people might want to modify a constitution in order to expand the
scope of rights or to add new rights that go beyond these minimal standards.
For example, the right to private property could be reframed as requiring a
basic income or new (second- and third-generation) rights directed at
achieving a great reduction of social and economic inequalities could be recog-
nised.60 In a typical constitutionalist constitution with an entrenched bill
of rights, all these changes are as difficult to achieve (procedurally) as the
abolition of the right to vote.
Beyond ‘democratic rights’: the extra-democratic effects

of constitutions
Contemporary constitutional theory seems to have reached a point in which
democracy and constitutionalism appear as “partners in principle”,61 to use
Dworkin’s phrase. One possible reason for this is that, as suggested above,
many of the rights and institutions traditionally protected by liberal constitu-
tions are fundamental to the exercise of democracy. We have seen that there
are good arguments that point to different connections between democracy
and fundamental rights. Nevertheless, constitutionalism’s fear of constitu-
tional change is not limited to the protection of the rights and institutions
that, according to some theorists, are constitutive of democracy; it extends to
the entire organisation of government and the economy. Thus, when consti-
tutionalists talk about protecting or advancing democracy by a constitution
that is difficult to change, they are also protecting, for example, the tradi-
tional liberal system of governance, which comes accompanied by a concep-
tion of the market as a central feature of democratic life.62 That is, they are also
making difficult more profound constitutional transformations that, while
promoting progressive political goals and being perfectly consistent with
basic democratic principles, are incompatible with other aspects of liberal
governance whose connection to democracy is not very strong or
non-existent.
It is surprising that the fact that constitutions do much more than simply
establish ‘the rules of the game’ (understood as the rules that make democratic
decision-making processes possible and enable human beings to govern them-
selves) is absent from many discussions about the relationship between consti-
tutionalism and democracy. This point is well exemplified in Holmes’ work,
which we briefly examined earlier. The problem, as David Schneiderman has
written, is that Holmes, as a good constitutionalist, “chooses to stress the
structural and procedural aspects of constitutional rules”, ignoring the fact
that constitutions also contain other provisions, such “as those concerning
liberty and property”, which are less obviously related to the formation of a
democratic will but have important implications in the daily lives of indi-
viduals.63 Put bluntly, liberal constitutions can also promote different
economic and political inequalities, and can hinder rather than enable or
protect democracy.64 In this respect, it should come as no surprise that a
leading American historian (and pace Justice Oliver Wendell Holmes’ famous
dissent in Lochner stating that the US constitution was not intended “to
embody a particular economic theory”65) has concluded that the founders of
the US Constitution sought “to place the new land in the mainstream of
acquisitive capitalism”.66
An obvious example is provided by property rights. On its face, the right
to private property is neutral: it guarantees, for instance, that any individual’s
property will not be confiscated by the state without compensation or tres-
passed by strangers. And, as we saw earlier, it can even be connected to the
possibility of meaningful political participation. But of course, there are many
ways of conceiving the right to private property, and some of these ways will
have little to do with increasing an individual’s ability to participate in poli-
tics. For example, it is difficult to appreciate how the protection of pharma-
ceutical companies’ property rights, which frequently results in a lack of
access to medicines in poor countries, is connected to improving or protecting
democracy. Moreover, if the allocation of property is unjustly unequal at the
moment at which a constitution is adopted, the inevitable result is protecting
an unjust status quo. In such situations, the kind of neutrality that is protected
is a ‘status quo neutrality’, to use Cass Sunstein’s term.67 Moreover, not only
will those who possess great amounts of property tend to enjoy greater degrees
of political influence, but those who do not possess any will frequently lack
the time and energy to even be involved in political activity.
The anti-democratic (and conservative) character of constitutions imper-
vious to change can be observed clearly in the following context. Suppose, for
example, that a social movement is promoting important changes to the way
property is regulated in a determinate jurisdiction with the objective of
increasing the state’s capacity to intervene in the economy. If property rights
are entrenched, that movement would probably seek to alter the constitu-
tion.68 When attempting to do so, however, it will most likely be confronted
with a constitution that is not only very difficult to change, but whose change
lies exclusively in the hands of government officials and could easily be
blocked by a minority of ordinary legislators. It would be highly unlikely that
the answer ‘the constitution is difficult to change in order to allow people to
govern themselves’ would satisfy them, and understandably so.
There is an obvious constitutionalist rejoinder to this argument. The
problem is not the constitutional text or the fact that it can only be amended
by supermajorities: many constitutional provisions, particularly those
contained in a bill of rights, are abstract and can be interpreted in a number
of ways. In fact, in many countries the scope and limits of rights (including
property rights) are the result of the ways they have been interpreted by
courts. Courts, however, are not always on the side of social justice. As Richard
Ford, writing in a US context, has observed, there are many reasons to be
sceptical that “any significant durable successes in terms of egalitarian distri-
bution of social resources” can be achieved through constitutional litigation.69
In a similar vein, Michelman has rightly pointed out that courts seeking to
enforce traditional constitutional protections can easily get in the way of
different types of social reforms:
Judges honouring claims to constitutional protection for freedoms of

speech and association can stymie efforts to fashion a set of media policies
aimed against undue concentrations of power to control public discourse,
or a set of electoral practices designed to minimise conversions of economic
into political power. Judges honouring claims to private liberty, prop-
erty, and freedom from racial classifying may block employment legisla-
tion directed toward equal opportunity or decent conditions of work, or
housing legislation aimed at giving everyone a chance for adequate
housing.70
Perhaps more importantly, judicial interpretations of rights become part of

the constitutional reality, alterable only through a subsequent court ruling or
through a constitutional amendment.71 When looked at from a democratic
perspective, this is particularly problematic since, as we have seen,
constitutions, as well as their official interpretations, can have important
extra-democratic effects. Accordingly, placing their content beyond the
scope of democratic politics cannot be defended in terms of protecting democ-
racy from itself, particularly when some of the changes that might be consid-
ered ‘unconstitutional’ would likely improve the quality of life, as well as the
prospects for participation and deliberation on public issues, of many citizens.
A liberal constitution is not simply “a charter that makes law-making
possible”, a document that should not be “cluttered up with amendments
relating to substantive matters”, as these matters come accompanied by an
“insidious danger [that] lies in the weakening effect they would have on the
moral force of the Constitution itself”, as Professor Lon Fuller once wrote.72
Liberal constitutions are already cluttered up with substantive matters and
they do not merely set up the procedures through which ordinary laws are
adopted.
Constitutions also set up the basic structure of government and the types of
structures and institutions they create might not be particularly conducive to
democracy; yet they can only be altered with great difficulty. There are, natu-
rally, different sorts of arguments against this kind of structural change,
particularly arguments that point towards the need for political stability.73
Stability, however, cannot mean that these structural elements can never be
changed (that would be petrifaction rather than stability), and yet that is in
practice the effect that rigid constitutions have. Thus, for example, in the US
as well as in other countries, there is a considerable amount of literature about
the allegedly undemocratic character of judicial review of legislation. There
are also other mechanisms and institutions, such as national recall referen-
dums, the adoption of an electoral system based on the principle of propor-
tional representation, and unicameralism, which perhaps would increase the
quality of democracy.
Abolishing judicial review, or adopting any of the previously mentioned
mechanisms and institutions, might require alterations in the constitutional
text that, even if supported by great majorities of the population, would be
very difficult to achieve in a system in which the traditional obstacles to
constitutional amendments are present and in which the power of constitu-
tional reform lies in the exclusive hands of government officials.74 In short,
there are many ways of democratising a political system that require funda-
mental constitutional re-making, and the fact that those changes lie outside
the scope of democratic politics can hardly be made consistent with a commit-
ment to democracy. Democracy, as suggested earlier (and as will be argued in
the next chapter), is not limited to ordinary law-making; that is, to the kind
of activities that take place inside legislatures. In the context of constitutional
change, democracy mandates the creation of opportunities for popular par-
ticipation in the production of the fundamental laws. And popular partici-
pation in constitutional change would be meaningless if it did not occur in a
context in which citizens find their constitution radically open, susceptible to
any kind of modification.
Concluding remarks
This chapter introduced the ideal of constitutionalism, stressing some of the
ways in which it finds itself in tension with democracy. It also considered
different attempts to show that, despite these ‘apparent’ tensions, constitu-
tionalism and democracy are in fact two sides of the same coin. More specifi-
cally, it examined the argument that, because constitutionalism protects
certain rights that are necessary for the very existence of democracy, there
cannot be a democracy without constitutionalism. Although that idea might
have some force with regard to certain rights (interpreted in certain ways), it
cannot explain why an entire constitution (which does much more than simply
protect the rights that make democracy possible) must be entrenched and
placed beyond the scope of democratic politics. The next chapter will delve
deeper into the relationship between constitutionalism and democracy. It will
examine the ways in which traditional approaches to democracy (the substan-
tive and procedural approaches) operate almost exclusively in the context of
democratic governance and thus neglect the second dimension of democracy:
the relation of citizens to their constitution. As we will see, the second
dimension of democracy is not only important for the question of
democratic legitimacy but it also allows us to isolate the tensions and conflicts
between constitutionalism and democracy and, therefore, to understand them
better.
Notes
1 Richard Bellamy and Dario Castiglione, ‘Review Article: Constitutionalism and
Democracy: Political Theory and the American Constitution’, British Journal of
Political Science 1997, vol 27, p 595.
2 Stephen M. Griffin, ‘Constitutionalism in the United States: From Theory to
Politics’, Oxford Journal of Legal Studies, 1990, vol 10, p 202.
3 Michel Rosenfeld, ‘Modern Constitutionalism as Interplay Between Identity and
Diversity’, in Michael Rosenfeld (ed), Constitutionalism, Identity, Difference, and
Legitimacy, Durham: Duke University Press, 1994, p 5.
4 András Sajó, Limiting Government: An Introduction to Constitutionalism, Budapest:
Central European University Press, 1999, p 39.
p 233.
6 Giovanni Sartori, ‘Constitutionalism: A Preliminary Discussion’, American Polit-
ical Science Review, 1962, vol 56(4), p 862.
7 There is, of course, much more to the ideal of the rule of law. See Lon Fuller, The
Morality of Law, New Haven: Yale University Press, 1965; Joseph Raz, ‘The
Rule of Law and its Virtue’, in The Authority of Law: Essays on Law and Morality,
Oxford: Clarendon Press, 1979; Mark Bennett, ‘ “The Rule of Law” Means Liter-
ally What it Says’, Australian Journal of Legal Philosophy, 2007, vol 32, p 190.
8 For instance, countries such as the United Kingdom and New Zealand, which
have unwritten or partially unwritten constitutions, adhere to the ideal of con-
stitutionalism and effectively limit political power.
9 Lycurgus, who according to Greek mythology was a direct descendant of Hercules
and the author of the Spartan constitution, persuaded Spartans to promise that
they would not alter the new constitution until he returned from the Delphic
Oracle. When the Oracle revealed to him that he had prepared a good constitu-
tion, he killed himself and had his ashes scattered in the ocean so that no one
could ever maintain that he had returned in any form. The constitution remained
unaltered for 500 years. Dennis Thompson, ‘Democracy in Time: Popular
Sovereignty and Temporal Representation’, Constellations, 2005, vol 12, p 251.
Interestingly, when asked about what kind of constitution he wanted for France,
Robespierre (who was not very successful in creating stable constitutions) is said
to have replied: “That of Lycurgus.” Alfred Cobban, A Modern History of France,
Vol 1: 1715–1799, Penguin Books, 1963, p 179.
10 The US Constitution provides a good example of immutability: not only it is
extraordinarily difficult to amend (through a process that can hardly be
described as democratic and participatory) but it is always presented in its origi-
nal form, with amendments not typographically integrated into the text but
appearing at the end. See Claude Klein, ‘A Propos Constituent Power: Some
General Views in a Modern Context’, in Antero Jyränky (ed), National Constitu-
tions in the Era of Integration, The Hague: Kluwer Law International, 1999, p 33,
n 12
11 Quoted in Lucien Jaume, ‘Constituent Power in France: The Revolution and its
Consequences’, in The Paradox of Constitutionalism: Constituent Power and Constitu-
tional Form, Martin Loughlin and Neil Walker (eds), Oxford: Oxford University
Press, 2007.
12 Quoted in Antonio Negri, Insurgencies: Constituent Power and the Modern State,
Minneapolis: University of Minnesota Press, 1999, p 1. The declaration was
issued on 15 December 1798.
13 Thomas Jefferson, ‘Letter to Samuel Kercheval, July 12, 1816’, in The Portable
Thomas Jefferson, Penguin, 1975, pp 558–559.
14 Ibid., p 559.
15 The idea of periodic conventions was also present in Rousseau: “Besides the
extraordinary assemblies unforeseen circumstances may demand, there must be
fixed periodical assemblies which cannot be abrogated or prorogued, so that on
the proper day the people is legitimately called together by law, without need
of any formal summoning.” Jean-Jacques Rousseau, The Social Contract and the
Discourses, London, Campbell Publishers, 1993, p 259. Those periodic assem-
blies would ask two questions: “The first is: ‘Does it please the Sovereign to pre-
serve the present form of government?’ The second is: ‘Does it please the people
to leave its administration in the hands of those who are actually in charge of
it?’ ” Ibid., p 269. During the French Revolution, this idea was defended by
Condorcet and also suggested by Sieyes. See Jaume, ‘Constituent Power in
France’, p 71, n 16. Some state constitutions in the US contain provisions that
mandate periodic constitutional conventions. See for example Article XIX, sec 2
of the Constitution of New York (1938): “§2. At the general election to be held
in the year nineteen hundred fifty-seven, and every twentieth year thereafter,
and also at such times as the legislature may by law provide, the question: ‘Shall
there be a convention to revise the constitution and amend the same?’ shall be
submitted to and decided by the electors of the state; and in case a majority of
the electors voting thereon shall decide in favor of a convention for such
purpose . . .”
16 Jefferson, ‘Letter to Samuel Kercheval’, p 560.
17 Clinton Rossiter (ed), The Federalist Papers no. 49, New York: New American
Library, 1961.
18 In fact, he at least favoured an important constitutional amendment: in a letter
to George Hay (23 August 1823), Madison argued in favour of modifying the
rules for electing the President. See Sanford Levinson, Our Undemocratic Constitu-
tion: Where the Constitution Goes Wrong (And How the People can Correct It), New
York: Oxford University Press, 2006, p 95.
19 Rossiter, The Federalist Papers.
20 Ibid.
21 Kathleen Sullivan, ‘What’s Wrong with Constitutional Amendments’, in Louis
Michael Seidman and Virginia Sloan (eds), Great and Extraordinary Occasions:
Developing Guidelines for Constitutional Change, New York: Century Foundation
Press, 1999, pp 39–40.
22 Kathleen Sullivan, ‘Constitutional Amendmentitis’, The American Prospect, Fall,
1995.
23 Sullivan, ‘What’s Wrong with Constitutional Amendments’, p 41.
24 Sullivan, ‘Constitutional Amendmentitis’, 37. Sullivan’s rejection of formal
constitutional amendments, of course, implicitly defends other modes of amend-
ing the constitution (e.g., amendments by judicial interpretation). On the
relationship between interpretation and amendments, see David Strauss, ‘The
Irrelevance of Constitutional Amendments’, 114 Harvard L. Rev. 1457 (2001).
25 See Bruce Ackerman, ‘Higher Lawmaking’, in Sanford Levinson (ed), Responding to
Imperfection: Theory and Practice of Constitutional Amendment, Princeton: Princeton
University Press, 1995; Sanford Levinson, Our Undemocratic Constitution: Where the
Constitution Goes Wrong (And How We the People can Correct It), New York: Oxford
University Press, 2006; Akhil Reed Amar, ‘Popular Sovereignty and Constitu-
tional Amendment’, in Responding to Imperfection; Stephen M. Griffin, ‘And the
Nominee is . . . Article V’, in William Eskridge and Sanford Levinson (eds),
Constitutional Stupidities, Constitutional Tragedies, New York: New York University
Press, 1998; and Donald Lutz, ‘Toward a Theory of Constitutional Amendment’,
American Political Science Review, 1994, vol 88, p 362.
26 Of course, this aspiration to permanence is not limited to US constitutional
thought. For instance, a few weeks before the recent military coup in Honduras
(which was a reaction to President Manuel Zelaya’s proposal to call a constituent
assembly for the adoption of a new constitution), a well-known Honduran his-
torian expressed that the Constitution of Honduras did not need any reforms,
since it was “complete”, and just needed “to be fully applied”. El Heraldo, ‘La
Cuarta Urna es Una Locura en Honduras’, 16 March 2009. Available: www.
elheraldo.hn/content/view/full/96983> (accessed 3 September 2011).
27 Christopher Eisgruber, Constitutional Self Government, Cambridge, MA: Harvard
University Press, 2007, p 13.
28 Ibid., p 12.
29 Stephen Holmes, ‘Precommitment and the Paradox of Democracy’, in Jon Elster
and R. Slagstad (eds), Constitutionalism and Democracy, Cambridge: Cambridge
30 Ibid., p 230.
31 Despite the frequently repeated statement that constitutions bind present-day
majorities because they were adopted by supermajorities, the route usually fol-
lowed by most constituent assemblies around the world is to adopt constitutions
through simple majority rule (sometimes subjecting them to a popular referen-
dum before they come into effect), while at the same time requiring legislative
supermajorities (and, again, sometimes popular referendums) for constitutional
amendments in the newly created constitution. For example, one of the most
recently adopted constitutions at the time of writing this book, the Constitution
of Ecuador (2008), was created through a constituent assembly that had the
power to approve the constitutional text (that would then be submitted to the
electorate in a referendum) through the affirmative vote of a majority of its
members. However, the ordinary amendment rule they created requires legisla-
tive supermajorities plus popular ratification (Article 441). The case of the
United States is no different: the US Constitution was in fact ratified by simple
majority rule (in some cases the vote was very close) in state conventions, while
the amendment process of Article V is highly counter-majoritarian (requiring a
two-thirds supermajority at the Federal Congress and the ratification of three-
fourths of state legislatures or conventions). See Lawrence Sager, ‘The Birth
Logic of a Democratic Constitution’, in John Ferejohn, Jack N. Rakove and
Jonathan Riley (eds), Constitutional Culture and Democratic Rule, Cambridge:
Cambridge University Press, 2002, p 111.
32 As will be seen in Chapter 7, these kinds of provisions are not necessarily incon-
sistent with a weak form of constitutionalism.
33 The term ‘unwritten constitution’ might not accurately describe the constitution
of countries such as the United Kingdom and New Zealand. Many of the consti-
tutional norms of those countries can be found in some written legal instruments.
In a way, what ‘unwritten’ means is: susceptible to being changed through the
same kind of formal legislative process by which ordinary laws are changed.
34 Ronald Dworkin, A Bill of Rights for Britain, London: Chatto & Windus, 1990.
35 Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution,
Cambridge, MA: Harvard University Press, 1996.
36 Jeremy Waldron, Law and Disagreement, New York: Oxford University Press,
1999, p 212.
37 Dworkin’s and Waldron’s views will be elaborated in Chapter 3.
38 The question of whether these rights pre-exist the constitution is, in my view, a
different one. That is to say, the idea of entrenchment is a juridical idea, one
that supposes that someone has the legal ability of placing certain content
outside the scope of ordinary legislative power.
39 There are exceptions to this general view. For example, the German Constitutional
Court has come close to arguing that there are certain constitutional principles that
cannot be touched, even by the people in the exercise of constituent power. See
‘The Southwest Case, 1 BverfGE 14 (1951)’, in Walter F. Murphy and Joseph
Tanenhaus (eds), Comparative Constitutional Law, New York: St. Martin’s Press,
1977 and more recently the Lisbon Case, BverfG, 2 BvE 2/08 (2009).
40 I use the term ‘fundamental rights’ to refer to civil and political rights, also
known as first-generation rights. However, it is not my intention to suggest that
second-, third- and fourth-generation rights are not fundamental or unimpor-
tant (in fact, in many cases they serve as pre-conditions for any meaningful exer-
cise of civil and political rights).
41 In other words, under the term ‘political rights’ I include those rights that are
necessary to formally participate in a democratic decision-making exercise (e.g.,
right to vote), as well as those rights necessary for expressing political opinions
and deliberating about them with others.
42 Holmes, ‘Precommitment and the Paradox of Democracy’, p 235.
43 Karl Marx, ‘On the Jewish Question’, in Francois Furet, Marx and the French
Revolution, Chicago: University of Chicago Press, 1984, p 110.
44 Frank Michelman, ‘Law’s Republic’, Yale Law Journal, 1988, vol 97, p 1536. See
also Hannah Arendt, The Human Condition, Chicago: University of Chicago
Press, 1998.
45 Frank Michelman, ‘Possession vs. Distribution in the Constitutional Idea
of Property’, Iowa Law Review, 1987, vol 72, p 1334. See also Philip Pettit,
Republicanism, Oxford: Oxford University Press, 1999, pp 160–161.
46 Corey Brettschneider, Democratic Rights: The Substance of Self-Government, Princeton:
Princeton University Press, 2007, p 45.
47 Jürgen Habermas, ‘Constitutional Democracy: A Paradoxical Union of
Contradictory Principles?’, Political Theory, 2001, vol 29 (6), p 767.
48 Ibid.
49 Jürgen Habermas, ‘On the Internal Relation Between the Rule of Law and
Democracy’, European Journal of Philosophy, 1995, vol 3(1), p 12.
50 Habermas specifically mentions “[b]asic rights to the provision of living condi-
tions that are socially, technologically, and ecologically safeguarded . . .” Jürgen
Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and
Democracy, Cambridge: MIT Press, 1996, p 123. For a discussion, see David
Ingram, Habermas Introduction and Analysis, Ithaca: Cornell University Press,
2010, pp 169–170, 184–189.
51 Habermas, Between Facts and Norms, p 104.
52 Ibid., pp 125–126.
53 Habermas, ‘Constitutional Democracy: A Paradoxical Union of Contradictory
Principles?’, p 774.
54 Jürgen Habermas, ‘Reconciliation Through the Public Use of Reason: Remarks
on John Rawls’ Political Liberalism’, The Journal of Philosophy, 1995, vol.
XCII(3), p 128. John Rawls, A Theory of Justice, Cambridge, MA: Harvard
55 Ibid. It is not clear, however, how this sort of political event is supposed to take
place. Because, as we will see later, the democratic legitimacy of a constitutional
regime depends precisely on its susceptibility to “re-constitution”, this book can
be understood as an argument in favour of providing citizens with the means to
“reignite the radical democratic embers of the original position”.
56 In the United States, see Citizens United v Federal Election Commission, 130 S Ct
876 (2010).
57 A similar argument, with respect to judicial review of legislation, has been
defended by John Hart Ely. See John Hart Ely, Democracy and Distrust: A Theory
of Judicial Review, Cambridge, MA: Harvard University Press, 1980. The point
here, however, is not about which rights should be supreme over ordinary legis-
lation, but the entrenchment of rights in a rigid constitution.
58 Consider, for example, Article 67 of the Constitution of the Democratic People’s
Republic of Korea: “Citizens are guaranteed freedom of speech, of the press, of
assembly, demonstration and association. The State shall guarantee conditions
for the free activity of democratic political parties and social organizations.”
59 See Waldron, Law and Disagreement, p 308.
60 See for example, C.B. Macpherson, Democratic Theory: Essays in Retrieval, Oxford:
Clarendon Press, 1977.
61 Ronald Dworkin, ‘Equality, Democracy, and the Constitution: We the People in
Court’, Alberta Law Review, 1990, vol 28, p 346.
62 Macpherson, Democratic Theory, pp 3–23.
63 David Schneiderman, Constitutionalizing Economic Globalization: Investment Rules
and Democracy’s Promise, Cambridge: Cambridge University Press, 2007, p 12.
64 This is well exemplified in critiques posed by the left to liberal constitutional-
ism. See for example Stephen Hill, ‘Constitutionalizing Inequality and the Clash
of Globalization’, International Studies Association, 2002, vol 4(2).
65 Lochner v New York, 198 U.S. 45, 75–76 (1905) (Holmes, J., dissenting). For
a critique of Holmes’ dissent, see James W. Ely Jr, ‘The Constitution and
Economic Liberty’, Harvard Journal of Law and Public Policy, 2012, vol 35(1).
66 Kermit L. Hall, The Magic Mirror: Law in American History, Oxford: Oxford
67 Cass Sunstein, The Partial Constitution, Cambridge, MA: Harvard University
Press, 1998.
68 New Latin American constitutions, for example, in addition to recognising dif-
ferent forms of property (e.g., public, private, communitarian, mixed, collective,
etc.), condition the enjoyment of private property to a set of requirements (e.g.,
that it serves a social function). See for example Article 321 of the Constitution
of Ecuador (2008), and Article 56 of the Constitution of Bolivia (2009).
69 Richard T. Ford, ‘Hopeless Constitutionalism, Hopeful Pragmatism’, in
Jack Balkin and Reva Siegel (eds), The Constitution in 2020, Oxford: Oxford
70 Frank Michelman, ‘Economic Power and the Constitution’, in The Constitution in
2020, p 49.
71 Or, in certain situations, through the adoption of an ordinary law inconsistent
with the judicial interpretation of a particular right but whose constitutionality
is not challenged by anyone.
72 Lon Fuller, ‘American Legal Philosophy at Mid Century’, Journal of Legal
Education, 1954, vol 6, 463–464.
73 Eisgruber, Constitutional Self-Government.
74 Judicial review of federal legislation in the US was established by a decision of
its Supreme Court (Marbury v Madison, 5 U.S. 137 (1803)), but a constitutional
amendment would probably be needed to abolish it as a juridical possibility.
3 The second dimension
of democracy
When someone is asked to identify a constitution as ‘democratic’ or ‘not

democratic’, she would usually put forward either one of two kinds of claims.
She might, for example, point towards the ways in which the regime’s laws
and institutions are consistent with a particular interpretation of the idea of
the ‘rule by the people’. For instance, if these laws and institutions treat citi-
zens equally and allow them to participate in everyday decision-making (that
is, if the regime guarantees the protection of what I identified in the previous
chapter as ‘fundamental rights’), she might defend that regime on democratic
grounds. But one can also take a different route and argue that if the regime’s
laws and institutions are the result of what is thought to be a democratic
procedure (e.g., an elected legislature that functions according to the prin-
ciple of majority rule), the regime has sufficient democratic credentials. The
first of these approaches can be identified as ‘substantive’ and the second as
‘procedural’. According to the first approach, a democratic regime would
operate under a constitution that guarantees the enjoyment of certain rights.
For example, a regime in which citizens can be arbitrarily arrested or cannot
organise themselves for political purposes would not normally be identified as
a ‘democracy’. According to the second approach, a regime that provides for
frequent elections and operates according to the doctrine of parliamentary
sovereignty might be identified as democratic even if it sometimes produces
valid laws inconsistent with fundamental rights.
The objective of this chapter is to show that these two traditional approaches
tend to obscure the relationship between citizens and their constitution. That
is to say, they only look at one dimension of democratic life: democracy at the
level of daily governance. Democratic governance has to do with the adoption
of ordinary laws and the administration of a state’s bureaucratic apparatus.
This is why it is of the utmost importance for all democratic theorists and
why, when one distinguishes between ‘democratic’ and ‘non-democratic’
countries, one typically uses it as the basic frame of reference. After all, why
care about who adopted the constitution and who can change it if citizens
enjoy liberal protections and can participate in the regular election of govern-
ment officials? However, if we are to look at the ways in which citizens are
allowed to constitute and re-constitute the juridical order, then we must look
36 The second dimension of democracy
beyond democratic governance. And that is exactly the case of this book, since
to examine the democratic legitimacy of a constitutional regime is to examine
the opportunities that the regime provides for democratic re-constitution.
The second dimension of democracy, democracy at the level of the funda-
mental laws, is thus directly connected to the question of democratic legiti-
macy: to defend the democratic legitimacy of a constitutional regime is to say
that citizens have the means of re-constituting it through democratic means
whenever they wish. This chapter will argue that this second dimension is
commonly neglected in traditional procedural and substantive approaches to
democracy, as well as in the constitutional arrangements consistent with those
approaches: the American system of constitutional supremacy and the
Commonwealth system of parliamentary sovereignty. The chapter begins by
introducing the distinction between democratic governance and democracy at
the level of the fundamental laws. It then examines the work of two self-
proclaimed democrats: Jeremy Waldron and Ronald Dworkin, the former a
proceduralist and the latter a substantivist, and argue that they approach the
first dimension of democracy as if it exhausted the democratic ideal and, as a
result, they ignore democracy at the level of the fundamental laws.
At the level of actual constitutional practice, a similar problem is present
in the American and Commonwealth approaches to democracy. These consti-
tutional orders identify themselves as ‘democratic’ because they seem to satisfy
the (minimum) conditions of democracy at the level of governance, even
though they negate the second dimension of democracy. As a result, and as
will be shown throughout this book, they are characterised by important defi-
cits of democratic legitimacy. In contrast to what these theories and arrange-
ments suggest, this chapter will maintain that democracy at the level of the
fundamental laws should be understood as a moment in the life of a juridical
arrangement: the moment in which important constitutional transformations
take place and in which popular sovereignty comes closer to being exercised.
Under this view, exemplified in the work of Sheldon Wolin, democracy is not
seen as a form of government contained and embodied in a constitution
(democracy always escapes constitutionalisation). Democracy (in what I call
its ‘second dimension’), on the contrary, should be seen as a political practice
that involves the exercise of constituent power.
The two dimensions of democracy

Democracy is a multidimensional ideal. In the context of law-making, its two
dimensions – democracy at the level of daily governance (first dimension) and
democracy at the level of the fundamental laws (second dimension) – relate,
respectively, to the production of ordinary laws and the production of the
fundamental laws.1 Both dimensions are necessary for the existence of a fully
democratic constitutional regime but, from the perspective of the day-to-day
lives of citizens, the realisation of the first dimension of democracy is
more urgent. Moreover, while the exercise of democracy at the level of the
The second dimension of democracy 37
fundamental laws in many ways depends on the existence of a vibrant system
of democratic governance, it is the second dimension of democracy that is
more closely connected to the democratic legitimacy of the constitutional
regime: if the regime is inconsistent with the idea of democracy at the level
of the fundamental laws, its democratic legitimacy is inevitably put into
question.
Democratic governance
When people say that a certain country is ‘democratic’, they are usually refer-
ring to democracy at the level of daily governance. That is, they are suggesting
that that country’s laws and institutions provide for frequent elections, that
citizens are allowed to associate in different organisations (including political
parties) and to express their political opinions without fear of punishment. In
short, they are simply making the observation that the country in question
satisfies the requirements of what Robert Dahl has identified as a polyarchy.2
For most democrats (including Dahl), these requirements fall short of
exhausting the democratic ideal. Nevertheless, some suggest that while this is
the case, in large and complex societies a polyarchy is the most democratic
system that one could realistically aspire to.3 Others, however, would insist
that countries normally identified as ‘democratic’ could, in fact, be ‘democra-
tised’ in fundamental ways (for example, by providing more opportunities for
direct citizen involvement in the formulation of governmental policy).4
Democratic governance is thus about the daily workings of a state’s juridical
apparatus, about the processes that result in the adoption of ordinary laws and
regulations and about the content of the fundamental laws.
For example, most claims that judicial review of legislation is undemo-
cratic are made at the level of democratic governance. These claims usually
stress the fact that judicial review leaves important decisions in the hands of
judges, and that democratic principles require that legislatures, as the duly
elected representatives of the people, be the ones called to make those deci-
sions.5 The processes through which ordinary laws and policies emerge are
also a matter of this first dimension of democracy, and the composition and
representative nature of legislatures is the main focus of the kind of critiques
that address these processes. For instance, an unelected upper house (like the
Canadian Senate or the British House of Lords) and the debate over districting
in countries such as the United States, are problems of democratic governance,
as well as issues like restrictions on campaign finances, proportional represen-
tation and the equal treatment of citizens by a state’s bureaucratic apparatus.
By the same token, the role citizens are allowed (or not allowed) to play in the
adoption of ordinary laws and in the workings of the legislative assembly is
also a matter of this first dimension of democracy. Are citizens allowed to
submit initiatives to parliament? Can they petition the recall of particular
legislators? What other institutions allow or promote citizens’ involvement in
ordinary law-making and the formation of state policies?
Although (as we will see in the next chapter) democracy mandates the
existence of extensive opportunities for popular participation in politics, in
the context of democratic governance this basic democratic principle can only
be realised in limited ways. For practical reasons (e.g., the size and complexi-
ties of modern societies), the role of different mechanisms that facilitate
popular participation (such as citizen assemblies and popular initiatives)
cannot assume a central role in the production of ordinary laws and the formu-
lation of a state’s policies. In that sense, ordinary representative institutions
and bureaucrats will typically occupy a privileged position in the exercise of
democracy at the level of governance. Nevertheless, this in no way means that
popular participation is not important in the context of this first dimension of
the democratic ideal. On the contrary, and as the previous examples suggest,
most demands made at the level of democratic governance are about increasing
the extent to which the constitutional regime facilitates different ways of
citizen intervention in the day-to-day life of the polity.
But democratic governance is not only about the production of ordinary
laws and about the processes in place for making political decisions. It is
also related to the content of a constitution in important ways: Does the
constitution provide for universal suffrage? Does it establish an elected
legislature? Does it respect fundamental rights? As we saw in the previous
chapter, if in the context of a particular constitutional regime those questions
are to be answered in the negative, no form of democracy would be possible.
In short, democracy at the level of governance is about the way a constitu-
tional regime works in a day-to-day basis. Because of its impact on the daily
lives of individuals, a lack or deficit of democratic governance in a determinate
country is more pressing for its citizens than a problem of democracy at the
level of the fundamental laws. Nevertheless, only the citizenry of a strongly
democratic polity, accustomed to vigorous democratic debate and participa-
tion in the production of the law and to the exercise of their political rights,
is likely to engage in the democratic re-constitution of the constitutional
regime (which, as discussed below, is what the second dimension of democ-
racy is about).6
Democracy at the level of the fundamental laws

The second dimension of democracy deals with other questions. It is not about
the daily workings of the state’s political apparatus, but about the relation of
citizens to their constitution. It looks at how a constitutional regime came
into existence and how it can be altered. In that respect, it revolves around the
following two questions: (1) Is this constitution the result of a democratic
process? (2) Can this constitution be altered through democratic means? To
ask about democracy at the level of the fundamental laws, then, is to ask
about two different moments in the life of a constitutional arrangement: past
constitution-making and (the possibility of) future fundamental constitu-
tional change. These are the moments in which a juridical order can come
closer to an exercise of popular sovereignty (understood as including the
faculty of creating a new constitution or, as we will see in later chapters, as
constituent power), and in which the question of democratic legitimacy
appears more clearly.7 With respect to constitution-making, the second
dimension of democracy is incompatible with ‘given’ or imposed constitu-
tions, regardless of how liberal or wise their content might be.8 The second
dimension of democracy requires that the fundamental laws are created by
those subject to them, through a process in which, as a sovereign people, they
are free to adopt any constitution they want.
A constitution might be consistent or inconsistent with democracy at the
level of the fundamental laws with respect to the moment it was created: it
may have been born democratically or undemocratically. That is to say, a
constitution can be the result of an exercise of political power by a sovereign
people or it can be imposed from the top down (even if by a philosophically
gifted political agent). To say that the second dimension of democracy involves
an exercise of popular sovereignty is not to say that democracy is exhausted by
popular sovereignty (an exercise of popular sovereignty can in fact abolish
democracy), but that it requires its affirmation in the context of the relation-
ship between the constitution and those subject to the constitutional order. In
terms of constitutional change, the second dimension of democracy is equally
demanding. It is incompatible with the Lycurgian-constitutionalist obsession
with permanence and with the fear of constitutional change. When important
juridical transformations are needed, it mandates a process that attempts to
reproduce a democratic constitution-making episode. This is made possible
by the exceptional nature of fundamental constitutional change: new or radi-
cally transformed constitutions are not born on a daily basis, and processes of
popular participation that for practical reasons cannot be used at the level of
daily governance acquire a special relevance during these extraordinary
moments.
These processes can take place through institutional mechanisms designed
to facilitate the realisation of democracy at the level of the fundamental laws
(Chapter 8 considers some specific examples), or they might be the result of
the politics of extra-juridical constitutional change. This last route could
involve a revolution in the legal sense, an alteration of the constitution in a
way that has not been anticipated by the established legal system. Regarding
this last point, further clarification is in order. The second dimension of
democracy is not equivalent to Bruce Ackerman’s ‘constitutional politics’ (to
be discussed in Chapter 4) and should not be confused with it. It is true that
Ackerman provides a theory about how the American constitution can be (and
has been) altered outside the formal amendment procedure contained in
Article V. But the actual role of the citizenry in his theory is not that clear.
Ackerman’s constitutional politics are mainly about getting the support of
‘the People’, about being able to speak in their name.9 In contrast, the second
dimension of democracy requires the actual participation of citizens in the
positing and (re)positing of the fundamental laws through mechanisms such
as citizen assemblies, referendums, popular initiatives and different forms of
local and direct democracy.
The distinction between the two dimensions of democracy can be exempli-
fied and summarised as follows. If someone asks: Is a dictatorial regime
adopted by a popular majority after a process of deliberation between equals
democratically superior to a constitutional order that includes the rights and
institutions that allow democracy to exist (e.g., freedom of assembly, freedom
of expression, etc.) but that was imposed on the citizenry by a foreign power?
The answer to that question is that it depends on what aspect of the category
‘democratic’ the person who asks the question wishes to stress, for both exam-
ples suffer from an important democratic deficit: the former has a clear
problem of democratic governance; the latter a clear problem of democracy at
the level of the fundamental laws (and, as we will see in Chapter 6, both have
a problem of democratic legitimacy). These two dimensions can also be
approached in temporal terms. While questions regarding democratic govern-
ance are generally about the present, questions about the second dimension of
democracy are normally focused in the past and in the future of a constitu-
tional regime. Democracy at the level of the fundamental laws also tends to be
more procedural than democratic governance, and in that respect it has a
‘populist’10 bent. However, it is not ‘purely’ procedural, because it presup-
poses respect for those rights and institutions that are necessary for a constitu-
tion to be adopted and changed democratically (even though the specific
content of these rights and institutions could itself be altered through a demo-
cratic process).
However, as will be argued in Chapter 6, if these rights and institutions are
abolished in an act of constitution-making or constitutional change, democracy
ends in the very act of being practised (regardless of how democratic the
process used to achieve that result is). One final point about the distinction
between the two dimensions of democracy: it might be argued that this
distinction is nothing but artificial and disempowering, and that any true
democratic project should attempt to blur the differences between the two
dimensions of democracy instead of highlighting them.11 There is a funda-
mental problem with this view. Where there is no distinction between the
two dimensions of democracy, there is no distinction between ordinary and
higher laws and, as a result, all laws become ordinary. The inevitable implica-
tion of such an arrangement is that either all law-making powers must be
left in the hands of government officials (i.e., a system of parliamentary
sovereignty) or that they must be left in the hands of the people. Since the
second alternative is impossible to put into practice in the context of contem-
porary societies, the only viable alternative is a system of parliamentary
sovereignty in which elected representatives are given an unlimited power
of ordinary law-making and constitutional change (that is, both legislative
and constituent power). But, as we will see shortly, the doctrine of parliamen-
tary sovereignty is inconsistent with a serious commitment to the second
dimension of democracy.
The theory and practice of substantive and
procedural democracy
The difference between proceduralists and substantivists is usually posed in
terms of their approach to the relationship between rights and majority rule.12
What separates procedural from substantive democrats is that the former
tend to stress the importance of having a fair process for making decisions
about controversial moral issues. Proceduralists defend majority rule as such a
process because it respects the equal status of citizens.13 Any realistic alterna-
tive to majority rule, they say, would violate the democratic value of political
equality, giving more weight to the votes of some citizens (e.g., supermajority
rule would give more weight to the votes of those in the minority), and some
decision-making rules would privilege the status quo (e.g., the rule of super-
majorities or unanimity). Some procedural democrats agree that those rights
necessary to create a fair democratic procedure (e.g., the right to vote) should
have priority over majority rule, and some might agree that rights that protect
individuals’ autonomy should also be outside the scope of democratic politics.
Substantivists, in contrast, think that not only should the rights necessary for
democracy be prioritised: those rights designed to produce just outcomes
(such as those that prevent arbitrary arrests and seizures) should also have
precedence over the democratic process and its decision-making rule.14
One of the most well-known procedural democrats is Jeremy Waldron.
Waldron’s critique of judicial review of legislation (probably the most impor-
tant component of his intellectual project) rests on a conception of democracy
that privileges procedure over substance. This does not mean that Waldron
believes that the content of fundamental and ordinary laws is not important
or that rights protection should be moved to a secondary plane, but that to
inquire into the democratic character of laws requires one to ask who made
them and by what procedures they came into existence.15 For Waldron, people
have a right to participate in equal terms in all aspects of their community’s
governance; that is, not just about matters of social and economic policy but
also about decisions of high principle.16 The right to participate – “the right
of rights”17 as Waldron called it, following William Cobbett – is connected to
values (such as autonomy and responsibility) that are part of the liberal
commitment to other basic liberties. According to Waldron, when our right
to political participation is not respected, our respect for other rights is called
into question.18 That is to say, we cannot say we are respecting someone’s
rights if we do not allow them to have a say whenever there is a disagreement
about what those rights entail.19
It is not that the right to participate has moral priority over other rights,
but that when there is disagreement about what rights people have (and dis-
agreement about rights is simply inevitable), the exercise of the right to par-
ticipation is the most appropriate for settling the dispute.20 Consequently,
Waldron’s answer to the question of ‘Who shall decide what rights we have?’
is: the people whose rights are in question must participate on equal terms in
that decision.21 For him, the right to participate involves the “imperative that
one be treated as an equal so far as a society’s decision-making is concerned”.22
This is another way of saying that there cannot be a democracy unless rulers
are controlled by the people they rule, and that “the people or their repre-
sentatives” should be the ones to determine the principles of their association
and the content of their laws.23 This, of course, is not the only possible or even
the most popular answer to that question, but it is what makes Waldron’s
approach to democracy procedural and what drives his understanding of rights
and his critique of judicial review of legislation.
A theorist who holds a result-oriented or substantivist approach to democ-
racy would answer that question very differently. This theorist would say, for
example, that even when people’s rights are at stake, it might be better to
entrust a body of jurists with the authority to decide what those rights require.
According to that theorist, our priority should be to design the institutions
that tend to make the ‘best’ decisions about rights, and it might be the case
that a court is better equipped to produce those decisions than a legislative
assembly. In contrast, the main tenet of Waldron’s theory is that there is a loss
to democracy every time a non-democratic institution24 imposes a decision on
the citizenry, no matter how wise that decision might be. Even with respect
to rights that are necessary for democracy to exist, Waldron thinks that “[t]
here is something lost, from a democratic point of view, when an unelected
and unaccountable individual or institution makes a binding decision about
what democracy requires”.25 Under Waldron’s view, democracy asks for a
democratic pedigree even when the decision-maker gets it ‘wrong’.26
For the substantive democrat, this constitutes a serious misunderstanding
of what democracy is all about. And Ronald Dworkin is the prototypical
substantivist. His view of democracy, sometimes presented as ‘the constitu-
tional conception’,27 and more recently as the ‘partnership view’,28 looks for
the democratic character of a regime in the content of its fundamental laws
and institutions. His favoured interpretation of the democratic ideal, the
partnership view, qualifies the relationship between majority rule and democ-
racy.29 According to Dworkin, democracy does not mean that the majority
should always, or even most of the time, have the final word. What democracy
requires is that the people govern themselves by treating individuals as full
partners in a collective enterprise.30 Decisions are democratic only when the
conditions that protect the status and interests of each individual as a full
partner are met. For instance, if a community decides, by majority rule (or by
unanimity for that matter), to ignore the interests or rights of some individual
or group, its decision is not only unjust, it has nothing to do with democracy.
In Dworkin’s view, deciding whether a law merits the adjective ‘demo-
cratic’ is not a matter of looking at the procedure from which it resulted;
what is essential is to confront its content with the theory of equal partner-
ship.31 If the theory allows for such content, then the decision in question can
be considered democratic, no matter if it is taken by a legislative majority or
by a non-representative institution. This substantive conception also applies
to constitutions. For Dworkin, a constitution serves democratic ends insofar as
it contains the right abstract principles. Who created the constitution, who is
allowed to change it and how is secondary. The democratic credentials of a
country’s fundamental laws depend not on when or by whom those laws were
made, but on their content.32 Thus, for example, if the fundamental laws
provide for a “more-or-less popularly accountable day-to-day government
based on a more-or-less equally distributed franchise; for non-discriminatory
law-making and prohibition of caste distinctions; for protection against arbi-
trary and oppressive uses of state powers; [and] for strong rights of moral
autonomy”, we have a democratic regime.33
The partnership view of democracy also has procedural implications. That
is, when there are disagreements about whether a proposed law or policy is
consistent with the theory of equal partnership, there must be a procedure in
place for reaching collective decisions. These procedures must show equal
concern for the human beings that live within the state’s borders. In Dworkin’s
view, this is best achieved with widespread and roughly equal suffrage, as “[o]
fficials elected by a broad swathe of the population will do a much better job
of protecting the weak against special privilege and tyranny than officials
elected by and responsible to only a few”.34 The idea is that the test of whether
a constitutional arrangement shows genuine procedural equality is to ask
“whether that arrangement is likely to produce policies that respect substan-
tive equality in concern for people’s lives”.35 Nevertheless, this does not
provide any reason to think that majorities should be allowed to alter a consti-
tutional structure ‘best calculated’ to ensure equal concern: “We may better
protect equal concern by embedding certain individual rights in a constitu-
tion that is to be interpreted by judges rather than by elected representatives,
and then providing that the constitution can be amended only by superma-
jorities.”36 Under this view, a democratic regime is one whose officials are
elected under procedures that allow a majority of the people to replace them
at regular intervals and that, “by and large”, treats individuals with equal
concern.37
Ignoring the second dimension of democracy

The substantive and procedural approaches discussed in the previous section
not only lack a proper account of democracy at the level of the fundamental
laws, but tend to negate it or at least obscure it. Dworkin’s partnership view,
by presenting the traditional content of a liberal constitution as democracy’s
precondition, makes the question of democracy at the level of the fundamental
laws simply irrelevant. In his ‘partnership democracy’ all that matters is
democracy at the level of governance, and even there it fails to meet the
demands of the democratic ideal. That is to say, democracy cannot simply be,
as Dworkin suggests, a system that gives “the final verdict on who leads it to
many millions of people”; it must also attempt to give ordinary citizens a role
in the activity of governing.38
Under Dworkin’s view, if a constitution provides for the rights and institu-
tions that make partnership democracy possible, it does not make sense to
be concerned about who adopted it and how, or to worry about the possibility
of important constitutional transformations. In fact, the very idea of democ-
racy at the level of the fundamental laws, of ordinary people meddling with
the constitutional regime, is a threat to partnership democracy. That is why
Dworkin, the substantive democrat, favours an amendment procedure that
makes constitutional change difficult and unlikely. Put another way, under
Dworkin’s substantive conception, there could be a democracy under a ‘given’
(and almost impossible to amend) constitution. That is to say, someone (say a
group of Western experts) writes a constitution that provides for an elective
legislative assembly (and the protection of traditional liberal rights) and tells
a group of people: there is your democratic constitution, now, govern your-
selves ‘democratically’.39 For all the merits of his approach, what Dworkin
does is to put the constitutional regime out of the scope of democratic poli-
tics, and by doing so, he might be guilty of breeding what Jonathan Wolff has
dubbed “the enfeeblement of the political”: by attempting to protect society
from the “tyranny of the majority”, Dworkin shrinks the sphere of democratic
decision-making to a point in which democracy and constitutionalism become
indistinguishable.40
While Dworkin’s partnership view seems to negate the second dimension of
democracy, Waldron’s conception simply obscures it. His procedural approach
has no account of democracy at the level of the fundamental laws; it is as if
democratic governance enclosed all forms of democratic politics. The problem
stems from Waldron’s defence of parliamentary supremacy, which would do
away with the distinction between higher and ordinary laws and comes accom-
panied by a problematic overestimation of legislatures. Waldron’s attack of
judicial review of legislation rests on the idea that when there is a disagree-
ment about rights, it should be the people whose rights are in question who should
decide what rights they have. But of course, when he says that ‘the people should
decide’, he is not arguing in favour of some form of government by refer-
endum, or suggesting that all citizens should come together in an assembly
and deliberate about what is the best interpretation of a constitutional right.
When Waldron talks about ‘the people’, he is talking about the legislature,
which is why he usually writes ‘the people or their representatives’.41 The problem
with this view is that while it gives to the legislative assembly what it takes
away from the judiciary, it comes very close to equating ‘people’ with ‘legis-
lature’, thus rendering the actual participation of ordinary citizens unneces-
sary in framing the content of the fundamental laws.42 His assertion that every
time there is a disagreement about rights, “the people whose rights are in
question have the right to participate on equal terms in that decision”,43
does not mean much if it only means that an ordinary legislature will do all
the work.
Democracy at the level of the fundamental laws cannot merely mean that
the people are allowed to have elected representatives make decisions in their
name. Although the legislature possesses a democratic pedigree that the judi-
ciary lacks, it cannot be the main site for the exercise of the second dimension
of democracy. I have to be clear here on what I mean. Although I am arguing
that Waldron’s approach obscures the second dimension of democracy, I am
not claiming that he is wrong in his attack on judicial review, that the institu-
tion of representation should be abandoned or that legislatures should not
have the final word (with regard to the courts) on the requirements of consti-
tutional rights. In fact, I very much agree with these views, and I think they
are the views that democratic governance requires.44 More importantly, I am
not arguing that Waldron really thinks that democracy can be exhausted in a
legislature.45 My claim is that his defence of parliamentary sovereignty and of
the ‘right to participate’ obscures the meaning and demands of democracy at
the level of the fundamental laws (as there would simply be no fundamental
laws to change through particularly participatory procedures).
In Waldron’s defence, one might say that his approach does not exclude an
account of the second dimension of democracy and that, in fact, it could be
made compatible with it.46 But this is precisely my point: procedural accounts
of democracy, as substantive ones, operate only at the level of democratic
governance and therefore have little to say about democracy at the level of the
fundamental laws. In that sense, my critique of Waldron and Dworkin is not
symmetrical, for although Dworkin does not leave space for the second dimen-
sion of democracy (he sees a constitution that contains the right abstract prin-
ciples as one that should not be meddled with and that should only be
amended in exceptional cases by supermajorities), Waldron’s procedural
approach may be seen as simply incomplete in that respect.
When we look at the United Kingdom’s and New Zealand’s constitutional
arrangements, which come very close to the practical realisation of Waldron’s
theory, one can see that this conception can quickly become problematic. Those
systems, sometimes depicted as the “perfect victory”47 of democratic theory,
operate under the doctrine of parliamentary sovereignty. As A. V. Dicey
explained in his famous treatise, a constitutional system consistent with the
traditional conception of parliamentary sovereignty normally lacks a clear
distinction between ordinary and constitutional laws.48 Dicey understood very
well the immediate implications of this doctrine (and in fact later in his life
rebelled against them)49: the people, even if they are sovereign in some sort of
abstract way, can only act through parliament. This is why he agreed with de
Tocqueville’s description of the English Parliament as “at once a legislative and
constituent assembly”.50
In such a system, the second dimension of democracy is negated in impor-
tant ways: regardless of how democratic such a system might be at the level of
daily governance (e.g., it does not give judges the power to strike down legis-
lation, it might operate under the fairest electoral system imaginable), it
would fail to provide citizens with the opportunity to deliberate, propose and
decide on the content of the fundamental laws. That is to say, by blurring the
distinction between ordinary and constitutional law, we also end up blurring
the distinction between parliament and people. In fact, any strong distinction
between parliament and the people threatens the very basis of the doctrine
of parliamentary sovereignty, as it opens the way for arguments that seek
to justify the existence of legal limitations on parliament’s ‘unlimited’
law-making power (the most common approach concluding that those limita-
tions are to be enforced by the judiciary) by reference to a superior popular
sovereign.51
Under this type of arrangement, recommended at the level of theory by
Waldron, an ordinary legislative assembly ends up doing all the work, and
popular participation is limited to electing legislators every few years.52 There
is usually no space for extraordinary mechanisms of constitutional change
since legislators have jurisdiction over all law changes, regardless of how
fundamental. In that respect, a traditional system of parliamentary sover-
eignty, which usually accompanies an unwritten constitution, amounts to the
institutional elimination of the second dimension of democracy. Of course, a
sovereign parliament always has the possibility of consulting the population
before adopting a law that alters basic constitutional principles, but sovereign
parliaments rarely do that (why do it, if you are sovereign?).53 For example, in
the United Kingdom there have only been two national referendums in
history: in 1975, electors were asked whether the UK should remain part of
the European Community and, more recently, in 2011, on a proposed change
to an ‘Alternative Vote’ electoral system.54 In New Zealand, there have been
much more government-initiated referendums on constitutional and non-
constitutional issues (although there have been major constitutional changes
that have not been adopted after a referendum).55 Moreover, New Zealanders
have the opportunity to initiate non-binding referendums through the collec-
tion of signatures on any issue.56 In any case, a referendum is not a sufficient
mechanism for the exercise of democracy at the level of the fundamental laws.
Referendums, as we will see in the next chapter, do not involve the degree of
popular participation that the second dimension of democracy requires.
The very nature of an unwritten constitution also runs counter to the
demands of democracy at the level of the fundamental laws. Not originating
from a conscious act of self-government but developed over time as a result of
conventions and practices among political elites, an unwritten constitution
does not (almost by definition) result from democratic constitution-making
process. The other major possibility, a system of constitutional supremacy like
that present in the United States, is not very promising either. Even though
susceptible of being born out of a democratic constitution-making episode
and based on a radical distinction between constitutional and ordinary
law, such a system does not necessarily fare better in giving citizens the
opportunity to participate in episodes of democratic re-constitution. In
fact, it might even do worse than the traditional system of parliamentary
sovereignty.
As discussed in the previous chapters, the typical liberal constitution is
very difficult to change and its transformation usually lies exclusively in the
hands of legislatures. Reputed to reflect the ‘will of the people’, its modifica-
tion is placed out of the scope of ‘transient’, ‘passionate’ or ‘tyrannical’ present-
day majorities (or supposed to take place through judicial interpretation).
Constitutions can therefore only be changed by supermajorities (which
means that a minority will be able to veto any proposal for change), and the
relevant ‘supermajorities’ are not ordinary citizens but legislators. The inevit-
able result is a system in which citizens find the constitutional regime already
written for them, and lack the legal faculty of proposing, much less of delib-
erating and deciding, on the content of the constitution. It is interesting that
legislators, while subject to the difficult requirements of a constitutional
amendment formula, are nonetheless allowed to do all of these things (that is,
proposing, deliberating and deciding on the content of the constitution),57
whereas the people, whose will is supposed to be reflected in the constitution,
is not.
The second dimension of democracy: approaching

constituent power
My purpose in the previous sections was not only to establish a distinction
between democratic governance and democracy at the level of the fundamental
laws, but also to show how the latter is obscured or negated in familiar
approaches to democracy. I briefly examined the kind of issues connected to
this second dimension, but I did not consider the specific constitutional forms
proper to it and there is a reason for this: democracy at the level of the funda-
mental laws cannot be conceived as a regime or identified with a constitution;
it is, rather, a moment in the life of a democratic polity that a juridical order
makes possible. In this section, building on Sheldon Wolin’s democratic theory,
I introduce this view. The idea that I take from Wolin is that of democracy (in
what I call its second dimension) as a moment rather than as a form of govern-
ment, a democracy that Wolin describes as fugitive to emphasise its necessarily
episodic and occasional character.58
My contention, it should be clear from the beginning, is not that democ-
racy as such is unrelated to constitutional forms. As I stated above, there are
certain rights and institutions (whatever specific form they may take) that are
necessary not only for democratic governance, but for the very existence of
democracy, and there are also mechanisms that might facilitate the realisation
of the democracy at the level of the fundamental laws. What I will suggest is
that the second dimension of democracy is not a matter of entrenching basic
principles, of finding the ‘most democratic form of government’, but a polit-
ical practice that takes place outside the confines of the established constitu-
tion (no matter how democratic this constitution might be thought to be).
Wolin maintains that to think of democracy and constitutions as naturally
belonging together, as each incomplete without the other, is commonplace in
contemporary societies.59 It is usually assumed, Wolin suggests, “that democ-
racy is the sort of political phenomenon whose teleological or even ideological
destination is a constitutional form”.60 A constitutional form is a structure to
which all politics should conform; whatever falls outside it is seen as illegal,
improper and anti-political.61 That, according to Wolin, has been the destiny
of modern democracy: to be fitted into constitutional forms that allow only a
determinate amount of popular politics to take place.
For instance, constitutions regulate the periodicity of politics and encapsu-
late them in ritualistic processes such as giving the ‘voice of the people’
the opportunity to ‘speak’ every few years through the election of government
officials.62 When democracy is settled into its ‘proper’ form (becoming a
constitutional democracy), writes Wolin, it is rendered predictable and
easily becomes the object of manipulation.63 According to the discourse of
liberal constitutionalism, these constitutional forms are designed to protect
democracy from itself: a democracy free of forms is synonymous with revolu-
tion, inherently instable and has a tendency to undermine the power of law
and the authority of government.64 Instead of advancing a conception of
constitutionalism that avoids democracy’s inclination towards revolution,
while at the same time preserving its best features, Wolin proposes to use
these very attacks as a basis for an aconstitutional democracy theory.65 Under
this conception, it is not assumed that the natural direction of democracy is
towards greater institutionalisation. Going beyond the emphasis on institu-
tional arrangements in which constitutionalism has priority over democracy,
Wolin invites us to think about democracy as episodically dictating the
contents of a constitution and as representative of a moment in the life of a
polity.66
In Wolin’s view, democracy cannot be seen as completing its task by estab-
lishing a constitutional form and then being fitted to it.67 A constitution
should not be understood as the fulfillment of democracy but as the transfigu-
ration of the democratic ideal into a regime; and democracy should be recon-
ceived as a rebellious moment in which – what Wolin calls – ‘the political’ is
remembered. The political refers to the idea that a society composed of human
beings with different world views and interests can experience moments of
commonality through public deliberations; that is, political moments in which
collective power is used to promote or protect the wellbeing of society.68 The
political should be distinguished from politics, which refers to the endless
struggle among organised powers (e.g., political parties) over “access to the
resources available to public authorities”.69 Unlike politics, which is contin-
uous and endless, the political is episodic and rare.70 The obstacle faced by
contemporary democracies is not, as it is usually argued, that the realisation
of the rule by the people is incompatible with the size and complexity of
modern societies.71 The problem is that contemporary democratic theory
comes accompanied by a conception of politics as a ceaseless activity directed
at assuming control or influence over the state apparatus.72 Moreover, any
alternative conception of democracy centred in the ‘citizen-as-actor’ is in
conflict with the modern idea of the state as the fixed centre of political life.
Democracy, says Wolin,
[N]eeds to be reconceived as something other than a form of government:
as a mode of being that is conditioned by bitter experience, doomed to
succeed only temporarily, but is a recurrent possibility as long as the
memory of the political survives. The experience of which democracy is
the witness is the realization that the political mode of existence is such
that it can be, and is, periodically lost. Democracy, Polybius remarks,
lapses ‘in the course of time’. Democracy is a political moment, perhaps
the political moment, when the political is remembered and recreated.
Democracy is a rebellious moment that may assume revolutionary,
destructive proportions, or may not.73
Wolin’s approach to democracy needs to be understood in the context of his

general critique of liberal constitutionalism. For him, a liberal constitution
can be used to shape a kind of ‘democracy’ in which the demos is subject to
institutional constraints that prevent certain kinds of outcomes, “such as the
confiscation of the property of the rich”.74 Not surprisingly, Wolin’s writings
stress the fundamental role that popular participation must play in any system
that aspires to be democratic, and emphasise the minor role that it plays in
contemporary constitutional democracies. Because liberal constitutionalism
tends to produce systematic inequalities, he considers imperative the need for
the active participation of those who historically have been the most politi-
cally disadvantaged: “Given the structural tendencies toward inequalities,
political action on the part of the socially and economically disadvantaged
becomes the crucial means of saving themselves.”75
However, this active demos does not (and should not) aspire to the taking of
state power; on the contrary, it is engaged in local struggles directed at
improving the lives of ordinary citizens, such as those for low-income housing,
better schools and healthcare.76 The demos does not seek to govern because that
would require accommodating itself to bureaucratised institutions that are,
by their very nature, hierarchical and elitist.77 In addition, given its material
conditions, and the fact that “the wealthy have purchased and nurtured polit-
ical agents to govern for them”,78 democracy must be episodic and circum-
stantial.79 Accordingly, the type of politics proper to Wolin’s theory is small
scale; its power lies in the multiplicity of different and modest sites dispersed
among neighbourhoods, counties, local governments and institutions, and on
“the ingenuity of ordinary people in inventing temporary forms to meet their
needs”.80 In conceiving democracy as rare and episodic, however, Wolin
provides us with a valuable tool to understand the practice of democracy at the
level of the fundamental laws.
The kind of democracy to which Wolin refers cannot be understood as
exemplifying what I have called democratic governance. In fact, at times
Wolin even seems to suggest that there is no such thing as ‘democratic’
governance: “Governing means manning and accommodating to bureaucra-
tised institutions that, ipso facto, are hierarchical in structure and elitist,
permanent rather than fugitive – in short, anti-democratic.”81 By doing this,
Wolin neglects the importance of popular participation in the context of daily
governance, and in that respect, his conception results in the opposite problem
to that of Waldron and Dworkin. My approach seeks to avoid that problem by
seeing what Wolin calls fugitive democracy as a manifestation of democracy
at the level of the fundamental laws. That is to say, fugitive democracy is one
of the possible manifestations of the democratic ideal. Both dimensions of
democracy, I contend, are valuable in themselves.
But even if it is clear that Wolin’s conception is not to be confused with
democratic governance, neither is it obvious that it should be identified with
the second dimension of democracy. Wolin’s focus on small-scale politics and
local struggles makes his take on constitutional change very difficult to deci-
pher: he seems to suggest that, in light of their material conditions and imme-
diate needs, it does not make sense for ordinary citizens to think about
challenging the ‘constitutional essentials’ of an established juridical order.
At other times, however, Wolin appears more optimistic. For instance,
he proposes to replace constitutional democracy with democratic constitution-
alism, which he defines as a situation in which “democratisation has dictated”
the content of the constitution and is “representative of a moment rather
than a teleologically completed form”.82 Although this is not the place
to attempt to construct a constitutional theory from Wolin’s writings, my
interpretation of Wolin’s idea of democratic constitutionalism is that he is
engaged, for the most part, in a discussion of democracy at the level of the
fundamental laws.
Under this interpretation, the second dimension of democracy is to be iden-
tified in the rare and fugitive instances in which an active demos posits the
content of a constitution, when ordinary citizens exercise their (constituent)
power to re-constitute the juridical order.83 In characterising democracy as
fugitive and episodic, Wolin effectively describes the defining characteristic
of the second dimension of democracy: a moment in the life of a juridical order
rather than a completed constitutional form. The distinction between the two
dimensions of democracy, while attributing to democratic governance a
daily and continuous character, sees democracy at the level of the fundamental
laws as the instance in which citizens come together and attempt to make
their association more just; a ‘political moment’, to use Wolin’s terminology.
It is precisely this episodic character that makes possible high levels of
direct popular participation that are not possible in the context of everyday
governance.
Understanding the second dimension of democracy as a moment in the
life of a juridical order means that it cannot be understood as expressed in
a constitutional regime; on the contrary, it seeks to challenge the established
constitutional arrangement and to transform it.84 In this sense, the very
idea of identifying a determinate constitutional form with democracy’s
second dimension would be based on a misconception. Unlike democratic
governance, democracy at the level of the fundamental laws is a political prac-
tice that never coincides with the established laws and institutions. Its exercise
can have the purpose of creating new rights or expanding existing ones (or
sometimes even limiting them), of changing the structure of governance or
founding a new state; it is always in conflict with the liberal idea of containing
politics within certain bounds after an act of constitution-making takes place,
of a constituent power exhausted after the constitution is in effect.85 It is a
democracy that remains forever incomplete and that, when practised, chal-
lenges the very constitution that makes it possible.
Concluding remarks
That democracy at the level of the fundamental laws cannot be identified
with a determinate constitutional form or contained in a constitutional regime
does not mean that its exercise is completely independent of the content of a
constitution. In fact, there are different mechanisms that might facilitate the
practice of democracy in its second dimension, making its exercise more likely
by giving citizens the institutional tools to trigger an episode of profound
constitutional transformation. Ironically, these types of mechanisms are
beginning to appear not in the national constitutions of established Western
liberal democracies but in the recently adopted constitutions of several Latin
American countries. These new constitutions include, among others, mecha-
nisms that allow ordinary citizens to initiate processes of constitutional reform
through the collection of signatures, draft the content of the new provisions
to be inserted into the constitution and require the state to call a popular
referendum to validate the proposed changes. Some of these constitutions
even include provisions that allow ordinary citizens to trigger sovereign
assemblies in order to alter the constitution in fundamental ways or to replace
the entire juridical order. These institutions will be considered in later
chapters, but first we need to explore the democratic ideal further and
identify some basic principles that should be taken seriously by any
conception of democracy (particularly of democracy at the level of the
fundamental laws).
Notes
1 Robert Dahl has also distinguished between the first and second dimensions of
democracy, but he uses that distinction in a different way (although there is a
certain symmetry between the way Dahl conceives the distinction and the way in
which I will use it here). For Dahl, the first dimension of democracy is about the
existence of certain rights and opportunities for political participation; the second
dimension about actual citizen participation in a country’s political life. Robert
Dahl, ‘A Democratic Paradox?’, Political Science Quarterly, 2000, vol 115(1), p 38.
In fact, the distinction between ordinary governance and constitution-
making was already present centuries ago. For example, George Lawson, writing
in the seventeenth century, said that politics, understood as “the act of well
ordering a commonwealth”, had two parts: the constitution and the administra-
tion of the Commonwealth. George Lawson, Politica Sacra et Civilis, Cambridge:
Cambridge University Press, 1992. One could also think about democracy at the
level of society (e.g., democracy in the workplace) as a third dimension and
democracy at the international level as a fourth. This, of course, is outside of the
scope of this book.
2 Robert Dahl, Democracy and its Critics, New Haven: Yale University Press, 1989,
p 233.
3 Dahl himself sometimes appears to take this view. For a discussion, see Richard
Krouse, ‘Polyarchy & Participation: The Changing Democratic Theory of
Robert Dahl’, Polity, 1982, vol 14(3), pp 441–463.
4 See for example Benjamin R. Barber, Strong Democracy: Participatory Politics for a
New Age, Berkeley: University of California Press, 1984; Joshua Cohen and
Charles Sabel, ‘Directly-Deliberative Polyarchy’, European Law Journal, 1997,
vol 3, p 313; Allan Hutchinson, The Companies We Keep: Corporate Governance for
a Democratic Society, Canada: Irwin Law, 2006.
5 See for example Mark Tushnet, Taking the Constitution Away from the
Courts, Princeton: Princeton University Press, 1999. Cf. Joel Colón-Ríos,
‘The Counter-Majoritarian Difficulty and the Road Not Taken: Democratizing
Constitutional Amendments’, Canadian Journal of Law and Jurisprudence, 2012,
vol xxv.
6 As Habermas has noted, “democratic institutions of freedom disintegrate
without the initiatives of a population accustomed to freedom”. Jürgen Habermas,
Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy,
Cambridge: MIT Press, 1996, p 130.
7 As we will see in Chapters 6 and 7, a constitutional regime might enjoy
democratic legitimacy even if it did not originate in a democratic constitution-
making process.
8 There is a considerable body of literature that deals with the relationship
between constitution-making and democracy, but most authors do not explicitly
adopt a strongly democratic posture. See for example Jon Elster, ‘Ways of
Constitution-Making’, in Alex Hadenious (ed), Democracy’s Victory and Crisis,
Cambridge: Cambridge University Press, 1997; Andrew Arato, ‘Forms of
Constitution Making and Theories of Democracy’, Cardozo Law Review, 1996,
vol 17, p 191; Dennis C. Mueller, ‘On Writing a Constitution’, in Ram
Mudambi and Pietro Navarra et al (eds), Rules and Reason: Perspectives on
Constitutional Political Economy, Cambridge: Cambridge University Press, 2001.
9 See for example Ackerman’s ‘Popular Sovereignty Initiative’, in which the
President and the Supreme Court are presented as speaking in the people’s
name. Bruce Ackerman, We the People: Transformations, Cambridge, MA: Harvard
University Press, 1998, pp 414–416.
10 The term ‘populism’ is nowadays used in a derogatory way: populist regimes
are basically dictatorships covered by a thick layer of democratic rhetoric, a
populist regime is what occurs when a democratic process goes wrong (that is,
when citizens opt for a government or system of government repudiated by
whoever is calling it populist). Needless to say, I do not use the term ‘populism’
in this way, but as a way of describing a regime based on democratic self-rule.
For an account of the historical uses of the word ‘populism’, see Ernesto Laclau,
Populist Reason, Verso, 2005. For a discussion of populism and proceduralism see
Frank Michelman, ‘Constitutional Authorship’, in Larry Alexander (ed), Consti-
tutionalism: Philosophical Foundations, Cambridge: Cambridge University Press,
1998.
11 See for example Roberto Unger, The Self Awakened: Pragmatism Unbound,
Cambridge, MA: Harvard University Press, 2007.
12 For an excellent hypothetical dialogue between a ‘proceduralist’ and a ‘substan-
tivist’, see Robert Dahl, Democracy and its Critics, p 135. See also the discussion
in Thomas Christiano, ‘The Authority of Democracy’, The Journal of Political
Philosophy, 2004, vol 12, 266.
13 For a general discussion, see Amy Gutmann and Dennis Thompson, Democracy
and Disagreement, Cambridge, MA: Belknap Press of Harvard University Press,
1996, pp 26–27.
14 Ibid., p 34.
15 Jeremy Waldron, ‘Can There Be a Democratic Jurisprudence?’, Emory Law
Journal, 2009, vol 58, 688.
16 Jeremy Waldron, Law and Disagreement, Oxford: Oxford University Press 1999,
p 213.
17 Ibid., p 232
18 Ibid., p 213.
19 Ibid., p 251.
20 Ibid., p 232.
21 Ibid., p 244.
22 Jeremy Waldron, ‘The Core of the Case Against Judicial Review’, Yale Law
Journal, 2006, vol 115, 1375.
23 Waldron, Law and Disagreement, p 7.
24 For Waldron, a democratic institution is an institution that is representative,
accountable to the electorate and embodies the ‘spirit of self-government’.
According to this vision, an elected legislature deserves to be characterised as a
‘democratic institution’ and its decisions naturally enjoy democratic legitimacy.
As I will argue later, although this might be true with regard to democratic
governance, it becomes problematic in the context of democracy at the level of
the fundamental laws.
26 Waldron sometimes seems to suggest that (even in the face of disagreement)
there are right answers to questions of political morality. I do not share this
view and I do not think there is a “set of eternal values or objective truths to
which a democratic society must conform or by which it can be disciplined”.
Allan C. Hutchinson, The Province of Jurisprudence Democratized, Oxford: Oxford
Cambridge, MA: Harvard University Press, 1996. See also Ronald Dworkin,
‘Equality, Democracy, and the Constitution: We the People in Court’, Alberta
Law Review, 1990, vol 28, p 329.
28 Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate,
Princeton: Princeton University Press, 2006.
29 Ibid., p 143. For example, people who hold office have much more power over
political decisions than people who do not.
30 Ibid., p 131.
31 Ibid., p 134.
32 Frank I. Michelman, Brennan and Democracy, Princeton: Princeton University
Press, 1999, pp 16–18.
33 Ibid.
34 Dworkin, Is Democracy Possible Here?, p 144.
35 Ibid., p 145.
36 Ibid., p 144.
37 Ibid.
38 Ibid., p 127 (emphasis added).
39 Perhaps the most famous example of this ‘model’ of constitution-making is
the case of Japan, whose supreme law was written by American experts
and translated to Japanese during the post-war occupation. Kioko Inoue,
MacArthur’s Japanese Constitution: A Linguistic and Cultural Study of its Making,
Chicago: University of Chicago Press, 1991.
40 Jonathan Wolff, ‘John Rawls: Liberal Democracy Restated’, in April Carter and
Geoffrey Stokes (eds), Liberal Democracy and its Critics: Perspectives in Contemporary
Political Thought, Cambridge: Polity Press, 1998, p 125.
41 Emphasis added. See for example Waldron, Law and Disagreement, pp 235, 252,
264, 265, 281, 293, 301 and 303. For a critique of Waldron’s attack on judicial
review based on an examination of the concept of representation, see Dimitrios
Kyritsis, ‘Representation and Waldron’s Objection to Judicial Review’, Oxford
Journal of Legal Studies, 2006, vol 26, p 733.
42 For Waldron’s defence of representative over direct democracy in the specific
context of legislation, see Jeremy Waldron, ‘Representative Lawmaking’, Boston
University Law Review, 2009, vol 89, pp 345–346.
44 See Colón-Ríos, ‘The Counter-Majoritarian Difficulty and the Road Not Taken’.
45 In fact, at one point during Law and Disagreement, Waldron briefly considers the
question of “constitutional design” and maintains that even a theorist hostile to
democracy, like Thomas Hobbes, argued that “the choice of constitution. . .was
one that could only be made by the people”. Waldron, Law and Disagreement,
pp 295–296.
46 For an attempt at making the realisation of the second dimension of
democracy consistent with a system of parliamentary sovereignty and an unwrit-
ten constitution, see Joel I. Colón-Ríos, ‘New Zealand’s Constitutional Crisis’,
New Zealand Universities Law Review, 2011, vol 24, 448.
47 Walter Murphy, ‘Constitutions, Constitutionalism, and Democracy’, in
Douglas Greenberg and Stanley N. Katz et al (eds), Constitutionalism and Democ-
racy: Transitions in the Contemporary World, Oxford: Oxford University Press,
1993, p 15.
48 A.V. Dicey, Introduction to the Study of the Law and the Constitution, London:
Macmillan, 1959, pp 36–37.
49 A.V. Dicey, ‘The Referendum’, National Review, 1894, vol 23, p 65.
50 Alexis de Tocqueville, Democracy in America, New York: New American Library,
1956, p 74.
51 See for example R.A. Edwards, ‘Bonham’s Case: The Ghost that Runs the Consti-
tutional Machine’, Denning Law Journal, 1996, vol 11, p 74.
52 Hence Rousseau’s famous statement that “[t]he people of England regards itself
as free; but it is grossly mistaken; it is free only during the election of members
of parliament”. Jean-Jacques Rousseau, The Social Contract and the Discourses,
London, Campbell Publishers, 1993, p 263.
53 Whether a ‘sovereign’ parliament can be legally bound by a referendum result is
a different question, which does not need to occupy us at this point.
54 According to Section 8 of the Parliamentary Voting System and Constituencies Act
2011 (c. 1), the results of the 2011 referendum (in which voters rejected a
change to an AV electoral system) were binding on the executive. There have
been several non-national referendums in the context of devolution, and some
authors argue that there is a trend in favour of the use of the referendum in the
UK. See for example Vernon Bogdanor, The New British Constitution, Oxford:
Hart Publishing, 2009.
55 For a discussion of the use of the referendum in New Zealand, see John
Parkinson, ‘Decision-Making by Referendum’, in Raymond Miller (ed), New
Zealand Government and Politics, Auckland: Oxford University Press, 2010.
56 New Zealand Citizen Initiated Referenda Act 1993. The Act establishes that
“the results of which referenda will indicate the views held by the people of
New Zealand on specific questions but will not be binding on the New Zealand
Government”. For a critique of the Act, see Caroline Morris, ‘Improving our
Democracy or a Fraud on the Community? A Closer Look at New Zealand’s
Citizens Initiated Referenda Act 1993’, Statute Law Review, 2004, vol 25, p 116.
57 The exception being constitutions with unamendable or eternity clauses (dis-
cussed in Chapter 7).
58 Sheldon Wolin, Politics and Vision, Princeton: Princeton University Press, 2004,
p 602.
59 Sheldon Wolin, ‘Fugitive Democracy’, in Seyla Benhabib (ed), Democracy
and Difference: Contesting the Boundaries of the Political, Princeton: Princeton
60 Ibid.
61 Sheldon Wolin, ‘Norm and Form: The Constitutionalizing of Democracy’, in
Peter Euben, John R. Wallach and Josiah Ober (eds), Athenian Political Thought
and the Reconstruction of American Democracy, Ithaca: Cornell University Press,
1994, p 49.
62 Sheldon Wolin, ‘Transgression, Equality, and Voice’, in Josiah Ober and Charles
Hedrick (eds), Demokratia: A Conversation on Democracies, Ancient and Modern,
Princeton: Princeton University Press, 1996, p 63.
63 For example, public opinion and electoral majorities can be easily manufactured
by money and the media. Wolin, Politics and Vision, p 602.
64 Regarding this point, a contemporary critic of democracy has stated that the
“surge of participatory democracy and egalitarianism [in the 1960s and 1970s]
gravely weakened, where it did not demolish, the likelihood that anyone in any
institution could give an order to someone and have it promptly obeyed”.
Samuel Huntington, American Politics: The Promise of Disharmony, Cambridge,
MA: Harvard University Press 1981, p 219.
65 Wolin, ‘Norm and Form’, p 37.
66 Ibid., p 39.
67 Ibid., p 55.
68 Wolin, ‘Fugitive Democracy’, p 31. Wolin’s concept of the political has been
the object of many critiques, mainly because of its obscurity. For the purposes of
my discussion, however, this definition of the political (provided by Wolin in
his ‘Fugitive Democracy’) is sufficient. For a discussion of this concept see James
Wiley, ‘Wolin on Theory and the Political’, Polity, 2006, vol. 38, 211 and
Stephen Holmes, ‘The Permanent Structure of Antiliberal Thought’, in Nancy
Rosenblum (ed), Liberalism and the Moral Life, Cambridge, MA: Harvard Univer-
sity Press, 1989.
69 Wolin, ‘Fugitive Democracy’, p 31.
70 Ibid.
71 See for example Robert A. Dahl, A Preface to Democratic Theory, Chicago: The
University of Chicago Press, 1970.
72 Wolin, ‘Fugitive Democracy’, p 42. See also Sheldon Wolin, Tocqueville Between
Two Worlds: The Making of a Political and Theoretical Life, Princeton: Princeton
73 Wolin, ‘Fugitive Democracy’, p 43.
74 Wolin, ‘Transgression, Equality, and Voice’, p 63.
75 Sheldon Wolin, ‘The Liberal/Democratic Divide: On Rawls’s Political
Liberalism’, 24 Political Theory 101 (1996).
76 Wolin, ‘Norm and Form’, p 58.
77 Wolin, Politics and Vision, p 603.
78 Ibid., pp 603–604.
79 Ibid., p 603.
80 Ibid.
81 Ibid.
82 Wolin, ‘Norm and Form’, pp 39–40.
83 Regarding the idea of ‘democratic constitutionalism’, see also James Tully, ‘The
Imperialism of Modern Constitutional Theory’, in Martin Loughlin and Neil
Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional
Form, Oxford: Oxford University Press, 2007.
84 James D. Ingram, ‘The Politics of Claude Lefort’s Political: Between Liberalism
and Radical Democracy’, Thesis Eleven, 2006, vol 87, p 40.
85 See Miguel Abensour, ‘ “Savage Democracy” and “Principle of Anarchy” ’,
Philosophy and Social Criticism, 2002, vol 28, p 708. The theory of constituent
power will be discussed in Chapter 5.
4 Democracy’s principles
In the previous chapter I argued that the second dimension of democracy is

primarily concerned with the following questions: (1) Is this constitution the
result of a democratic process? (2) Can this constitution be altered through
democratic means? This chapter will consider the question of what kind of
political practices amount to a democratic process, to an act of democratic
re-constitution, by defending a particular conception of democracy.1 This
conception rests on two basic principles: democratic openness and popular
participation. Briefly put, these principles mandate that all laws, including the
fundamental laws, are always susceptible to reformulation and replacement,
and that changes take place through participatory procedures. Popular partici-
pation and democratic openness, although relevant in the context of demo-
cratic governance, acquire a much more important dimension in the context of
the second dimension of democracy. The reason is as follows: the second
dimension of democracy, due to its episodical character, makes the realisation
of the basic principles of democracy both possible and desirable. A regime
consistent with the idea of democracy at the level of the fundamental laws
would thus be characterised by mechanisms that facilitate highly participatory
constitutional transformations. This chapter will flesh out the content of what
I have identified as the basic principles of democracy and explore the ways in
which they are negated in constitutional theory and practice.
The principle of democratic openness

Constitutionalism’s aspiration to permanence, as well as the political practices
it produces is, at the very least, at odds with democracy and, in the worst case,
incompatible with it. In fact, if my depiction (in Chapter 2) of constitution-
alism and of its accompanying ideology is accurate, democrats stand for all
that constitutionalists fear. It is true that democracy is one of the most
contested terms of our political culture, and that it is far from clear what
democracy requires in the context of large and complex societies. There are
some basic principles, however, that are inherent to the principle of ‘the rule
by the people’ (democracy’s specific and literal meaning).2 Once one begins to
depart from these principles, democracy quickly becomes something else. The
first of these principles is that a democratic society should be an open society;
that is, one in which even the fundamental laws are not only open for discus-
sion, but always susceptible to being reformulated or replaced. Democratic
openness welcomes conflict and dissent, and it is incompatible with unchange-
able – or virtually unchangeable – constitutional provisions. To paraphrase
Cornelius Castoriadis, a democratic society is “not a society that has adopted
just laws, once and for all, rather is a society where the question of justice
remains constantly open”.3
Democracy put slightly differently, is about a citizenry that is allowed to
have any constitution it wants. As Sheldon Wolin has put it, “democracy
should not depend on elites making a one-time gift to the demos of a prede-
signed framework of equal rights”.4 The conception of an open society is
directly related to the idea of the ‘rule by the people’ in one fundamental
sense. To say that the people rule themselves is to say that they are a ‘self-
governing’ people: a group of human beings that come together as political
equals and give themselves the laws that will regulate their conduct and the
institutions under which they will live. This involves two important and
related points. First, for these rules to be the people’s own, it must be today’s
people who rule, not past generations, however wise or well-intentioned their
act of constitution-making was, or whatever the content of the provisions they
adopted. In that sense, Stephen Holmes’ pre-commitment (discussed in
Chapter 2 and perfectly attuned to the logic of constitutionalism) cannot be
brought to a final reconciliation with democracy because a self-governing
people must be able to reformulate their commitments democratically.
Second, for there to be democratic self-rule, no rule can be taken for granted
or removed from critique and revision.5 Democracy, as Claude Lefort has
argued, allows “no law that can be fixed, whose articles cannot be contested,
whose foundations are not susceptible of being called into question”.6 The
idea of placing stringent requirements for constitutional amendments, or of
placing part of the constitutional text outside the scope of democratic politics,
is clearly at odds with the principle of democratic openness. The principle of
democratic openness, particularly in the context of constitutional change, is
highly compatible with majority rule. Any supermajority requirement would
express an undemocratic bias in favour of a constitutional status quo, the
potential closure of a constitution in whose creation citizens might not even
have participated (e.g., because they were not allowed to do so or because they
were ‘born’ into an already existing constitution). This openness, of course, is
always an ‘imperfect’ openness, because for there to be critique and revision,
the institutions and rights that make such activities possible must be respected
(whatever the form these institutions and rights may take).
These limits to democratic openness, however, are the limits of democracy
itself. Consider the case of a people deciding to abolish a constitution that
provides for institutions facilitating democratic self-rule and, instead, empow-
ering a sovereign dictator. In this kind of situation, one must distinguish between
the procedure by which a decision is taken (e.g., a democratic procedure) and its
Democracy’s principles 59
outcome or, as Jeremy Waldron has put it, between democratic means and demo-
cratic ends.7 Thus, if a people chooses to establish a dictatorial regime according
to which a single individual is granted full legislative and constitution-making
power, it does not follow that this regime would be democratic – even if it was
democratically created.8 These people would not simply have supplanted one set
of institutions for another. Such a regime would be in violation of the very idea
of democracy: it would preclude the possibility of ‘rule by the people’ (in other
words, it would be inconsistent with the first and second dimensions of democ-
racy).9 To say that in a democracy everything is open for replacement, then, is to
recognise that democracy always involves the risk of replacing itself. As expressed
by Castoriadis: “In a democracy people can do anything – and must know that
they ought not to do just anything. Democracy is the regime of self-limitation;
therefore, it is also the regime of historical risk – another way of saying that it is
the regime of freedom – and a tragic regime”.10
Democracy, there should be no doubt about it, is always a risk, but a risk
that a democrat – to remain a democrat – has no choice but to accept. One
might argue that it is precisely because of the risks associated with democratic
openness that there exist constitutions, fundamental and supreme laws, and
that the ideal of the ‘rule of law’ as opposed to the ‘rule of men’, is cherished.
In other words, this is why constitutions must be difficult to change, and the
reason for only altering them “reluctantly and as the last resort”.11 Having a
written and entrenched constitution should then be seen as a way of providing
some security against different types of democratic excesses, including the
very abolition of democracy. But that answer greatly overestimates written
and entrenched constitutions, as many public lawyers operating under an
unwritten constitution and a system of parliamentary sovereignty would
quickly point out: such systems have generally been successful in maintaining
a democratic form of government in place. Moreover, once a political move-
ment is sufficiently strong to violently (and undemocratically) replace a
constitutional regime, legal principles (national or international) are not diffi-
cult to surpass. In that sense, if there are some forms of oppression that
we consider unthinkable in contemporary liberal societies, it is not because
there are laws or constitutions against such practices, but because it would be
hard to imagine any group or individual with a political force capable of
imposing them.
Castoriadis is again on point: “If we can be reasonably certain that the
re-establishment of slavery tomorrow in the United States or in a European
country is extremely improbable,” he writes, “the ‘reasonable’ character of our
forecast is based not on the existing laws or constitutions (for then we would
be simply idiotic) but on a judgment concerning the active response of a huge
majority of the people to such an attempt.”12 Under this view, the enjoyment
of the rights and institutions that are usually associated with democracy
are less the consequence of the entrenchment of the relevant legal and consti-
tutional protections than a result of what may be identified as a “political
culture of mutual respect”.13 Every constitutional regime unaccompanied by a
democratic culture, no matter how liberal its constitution and how stringent
its procedures for constitutional change are, is always at risk. The twentieth
century is full of examples.14 A constitutional regime consistent with the
principle of democratic openness and accompanied by a culture of political
equality is also at risk (as there are no institutional or social arrangements that
can guarantee that grave abuses and injustices will not be committed),15 but at
a lesser risk than a constitution whose only chance to survive depends of
putting democratic politics in an institutional straitjacket.
This does not mean, however, that democratic openness recommends the
establishment of a sovereign parliament which is free to make any legal or
constitutional changes it deems appropriate. From the perspective of demo-
cratic openness, parliamentary sovereignty might be the best institutional
arrangement in the context of day-to-day governance, but it is highly prob-
lematic in the context of democracy at the level of the fundamental laws
(which means that the traditional doctrine of parliamentary sovereignty
cannot be made entirely consistent with the principle of democratic open-
ness). Such an arrangement might be consistent with ‘openness’ but not neces-
sarily with a democratic form of openness.
As we will see below, democracy requires that those subject to a constitu-
tional regime are also its authors, in the sense of being allowed to deliberate
and decide on its content through the most participatory procedures possible
(which, as we will see later chapters, will vary according to the particular
context and type of change).16 In that respect, even if one considers that demo-
cratic openness is realised by a system of parliamentary sovereignty in
the context of the first dimension of democracy, this very principle does not
allow one to conclude that parliament should be able to engage in the activity
of constitution-(re)making, even if subject to special procedural hurdles.
Episodes of important constitutional change make possible a fuller realisation
of the principle of democratic openness, for they allow ordinary citizens to
engage in more direct ways in the activity of constitutional reform.
The principle of popular participation

That democracy requires popular participation in the positing of the law is
almost axiomatic. Democratic self-government not only entails a “community
of citizens – the demos – [that] proclaims that it is absolutely sovereign” (i.e.,
the principle of democratic openness); it also involves an affirmation of the
“equal sharing of activity and power” of all citizens.17 As with the principle of
democratic openness, popular participation is highly compatible with majority
rule (as the only decision-making rule that gives every vote an equal weight).
In other words, popular participation demands that participants in a decision-
making process use a voting rule according to which their “ ‘yes’ and ‘no’
count equally”.18
Now, if democracy is about people ruling themselves as equals, about
a group of human beings self-determining the conditions of their political
association, the idea that they should be allowed to participate, in some way,
in the creation of the rules to which they will become subject is uncontrover-
sial, at least for the democrat. As Waldron has expressed, democracy requires
“participation by the people – somehow, through some mechanism – on
basically equal terms”.19 What remains controversial is how much par-
ticipation, and by what means, is necessary for one to conclude that the
principle of popular participation is being taken seriously.
In order to answer that question, and instead of proceeding through an
examination of different conceptions of democracy and their approaches to the
question of participation,20 I propose to begin by considering the meaning of
the principle of popular participation in the context of an ideal democracy;
that is, a democracy free from the practical problems present in contemporary
societies (e.g., problems of scale, lack of public interest, etc.) that contempo-
rary conceptions of democracy try to accommodate. In such an ideal democracy
(the favourite example of democratic theorists is, of course, the fifth-century
Athenian Assembly), all citizens are allowed to participate directly in the
activity of law-making. In other words, in an ideal democracy, the principle of
popular participation equals direct (assembly) democracy: a democracy in
which all citizens come together, deliberate and decide on the content of the
law. Needless to say, not everyone has always been fond of such an ideal. For
eighteenth-century critics of democracy (for which democracy almost invari-
ably meant ‘direct democracy’),21 this conception was necessarily problematic:
it presupposed that the lower classes of society would be granted political
power, which was considered by itself a very good reason for discomfort.
For example, Alexander Hamilton, who defended a distinction between the
‘will of the people’ and ‘the will of the legislature’ in order to defend judicial
review of legislation, did not think very highly of popular assemblies. “Are
not popular assemblies,” he asked, “frequently subject to the impulses of
rage, resentment, jealously, avarice, and of other irregular and violent propen-
sities?”22 Most contemporary democrats, however, explicitly or implicitly
assume that a ‘direct assembly democracy’, in which the entire citizenry is
allowed to decide and deliberate about the content of all laws, is the ideal, yet
unrealisable, form of democracy. For instance, Joshua Cohen and Charles Sabel
have recently attempted to find a “direct and deliberative alternative to
assembly democracy”23 that is workable in a contemporary society. In a similar
vein, John Burnheim identifies the “main practical problem about democ-
racy” by the fact that “in any full-blooded sense ‘government of the people, by
the people, for the people’ seems impossible in any but the narrowest range of
circumstances”.24
Burnheim, Cohen and Sabel, of course, are highly critical of traditional
forms of representative democracy. Nevertheless, even theorists who see
representative democracy as a desirable form of democratic organisation (as
opposed to a defective substitute for real democracy) criticise ‘direct assembly
democracy’ for its failure to live up to the principle of popular participation.
Nadia Urbinati, for example, defends representation as “both necessary and
desirable” for participation and, in suggesting that direct democracy is not the
best form of democracy, she stresses that “the direct presence of all citizens did
not prevent the Athenian ekklesia from being an assembly in which the large
majority abstained from fully active participation”.25 That is to say, the
majority of the citizens present in the assembly limited themselves to listening
to particular orators and voting on their proposals instead of speaking and
engaging in real deliberative practices. As Urbinati’s criticism of Athenian
democracy suggests, in an ideal democracy citizens not only reject or accept
particular proposals through a ‘yes’ or ‘no’ vote. The ideal democracy is also
deliberative: it requires an assembly composed of all those to whom the laws
will apply, and in which participants not only decide on the laws that will be
passed (as in a referendum) but also deliberate on their content (as in a properly
functioning, deliberative assembly).
An ideal democracy brings together what Cohen and Archon Fung have
identified as two different strands of democratic thought.26 The first one,
which they associate with Jean Jacques Rousseau, mandates broad citizen
participation in political decision-making. The second one, associated with
Jürgen Habermas, argues in favour of an increase in deliberation: citizens
should address common problems by reasoning together and exchanging
arguments. Put another way, the ideal democracy, a direct democracy, is the
full realisation of what Cohen and Fung identify as radical democracy.27 Now,
the unfortunate result of the complexities and size of contemporary societies
has been that direct democracy has become equivalent to the referendum. As
a mechanism of popular participation, however, referendums leave much to be
desired. In particular, they do not meet one of the defining features of radical
democracy: referendums only allow citizens to decide on the content of a
particular proposal through a ‘yes’ or ‘no’ vote, but do not necessarily involve
the level of deliberation present in an assembly. This does not mean that refer-
endums are incompatible with the principle of popular participation, but that
they must be surrounded by other – formal or informal28 – modes of delibera-
tion in order to truly contribute to a democratic process.
As Margaret Canovan has argued, the value of a referendum (whether initi-
ated by citizens or by government) “is due not so much to the referendum
procedure as to the popular mobilization that has taken form around it”.29
Even if the problem of the lack of deliberation was not present (as well as other
issues such as the problems of low turnouts, the undue influence of media
campaigns and varying degrees of intensity in the preferences of different
groups),30 making the adoption of every law dependent on a special election
seems like a highly unattractive (and costly) form of government.31 Not
surprisingly, scholars committed to democracy have attempted to develop
new ways of increasing citizen involvement in the context of daily governance
that address the difficulties presented by referendums.32 We have thus lately
seen an increase of proposals such as citizen juries and deliberative polls, in
which randomly selected citizens deliberate and issue proposals on particular
policy issues.33 To the extent that these mechanisms do not usually give
participants real decision-making power but merely serve as a means to
‘discover’ what the entire citizenry would decide after a proper deliberative
exercise, they are best understood as democratic simulations.34
Nevertheless, what unites these types of proposals is an attempt to create a
mini ‘direct assembly democracy’, to produce a situation that mimics what
citizens would do if they were able to come together to participate in and
deliberate on the creation of the laws. And, as suggested above, this is precisely
what the principle of popular participation requires: to make public decision-
making procedures as participatory as possible. In this respect, the principle of
popular participation is neither at odds with representative democracy nor
should it be taken as a recommendation for its abolishment. In fact, in the
context of day-to-day governance, the principle of popular participation is
entirely consistent with processes of ordinary law-making that mainly take
place through traditional representative institutions, as the problem of scale
would make it practically impossible to implement a system in which citizens
directly decide and deliberate on the content of every single piece of legisla-
tion. Of course, in a few local government and regulatory contexts, in which
the problem of scale is significantly ameliorated, meeting the demands of the
principle of popular participation could, in fact, mean having an assembly
conformed by all those affected by the relevant ordinance or regulation.
Even in the context of ordinary law-making for an entire country, one could
sometimes make use of a combination of citizen juries, initiatives and referen-
dums. However, any combination of these mechanisms would only be used
sporadically, perhaps in the context of particular controversial issues, as it
would be impracticable to subject the validity of every law to it having been
proposed by citizens through a popular initiative, considered by a citizen jury
and directly ratified by the electorate. Interestingly, the episodical nature of
democracy at the level of the fundamental laws presents a more welcoming
environment for the use of mechanisms of popular participation. That is to
say, when new constitutions are created or existing ones need to be trans-
formed in important ways, a rare opportunity to experiment with highly
participatory procedures presents itself. As will be seen in the next chapters,
the fact that most constitutional regimes miss these opportunities has a nega-
tive effect on their democratic legitimacy.
Although the previous paragraphs treated the limits to the realisation of
the principle of popular participation as mainly a problem of scale, we know
that this is not the only problem faced by any attempt of increasing popular
participation in politics: citizens’ lack of interest might prove fatal to any
attempt at furthering the democratic character of a polity. Although the
general trend towards a decrease in voter turnout in the world’s most advanced
‘democracies’ is certainly disturbing, I agree with Roberto Mangabeira Unger
when he says that “the level of popular participation in politics is not an
elusive and unyielding cultural fate, summarily reflecting the history of a
people”.35 Put differently, political apathy might not be the cause (or the only
cause) for the lack of participatory mechanisms but, at least in part, the result.
Like Unger, I remain confident that “a few relatively modest institutional
changes would be likely to heighten popular engagement in democracies that
now seem de-energized”.36 This is why the dominant approaches to the rela-
tionship between democracy and constitutionalism (which are decidedly
inclined towards realising the latter) are deeply unsatisfactory.
Negating democratic openness

The principle of democratic openness is negated in important ways by the
logic of constitutionalism. This occurs both at the level of constitutional
theory and at the level of constitutional practice (i.e., in the way in which the
constitutions of existing democracies approach constitutional change). This
section will begin by examining two general strands of constitutional thought.
The first one defends interpretation as the proper means of updating the
meaning and scope of constitutional protections. I associate that view with
theories of ‘living-tree’ constitutionalism, which will be exemplified through
an examination of Wil Waluchow’s common law theory of judicial review.37
This approach is important since, unlike the traditional constitutionalist aspi-
ration to permanence, it insists that constitutions should not be seen as frozen
documents, but as susceptible to growth. According to some accounts, social
movements have an important role to play in the development of a living-tree
constitution. After considering this approach’s inconsistency with the prin-
ciple of democratic openness, I will examine the ways in which this basic
democratic principle is negated by the typical amendment rules of the consti-
tutions of countries that are, by and large, considered to be well-functioning
constitutional democracies.
Waluchow’s defence of living-tree constitutionalism, at first sight, might
be taken as an attempt to find a place for the principle of democratic openness
in a world dominated by the traditional constitutionalist predisposition in
favour of the established constitutional regime. In fact, Waluchow argues that
entrenched bills of rights (enforced by judges) should not be seen as providing
a fixed point of agreement on the extent of governmental powers, or as a pre-
commitment about certain limits to majoritarian decision-making.38 Why
should today’s people be restricted by past generations, he asks, “especially
given the bias against change which constitutional amendment formulae
typically, perhaps even essentially, builds right into constitutions?”39 To
avoid this apparent problem, Waluchow invites us to see bills of rights as
living trees, capable of growth and of adjusting to our ever-changing under-
standings about rights. Far from being fixed points of agreement only alter-
able through formal amendment, they represent “a concession to our inability to
understand fully the nature of fundamental rights and how these might be
infringed by government action”.40 Under this conception, judicial review of
legislation would involve the identification of a community’s current and
authentic constitutional morality, as opposed to the constitutional morality of
previous generations or to the opinions defended by day-to-day majorities.
Notice, first, that the updating that Waluchow has in mind is mainly made
by judicial interpretation, rather than by a democratic procedure. It is judges
who are called to make the living constitution grow, not popular majorities.
The problem, then, is that Waluchow’s ‘rule of the living’ privileges only a
part of the living: judges and those directly involved in constitutional inter-
pretation. In that sense, even if it were consistent with the idea of openness
(which, as we will see below, is not the case), the democratic character of that
openness is weak at best. The living-tree conception, for all its sophistication
and appeal, is plagued by important undemocratic features as it is driven by
unelected judges, rather than by ordinary citizens. Perhaps acknowledging
this problem, some scholars sympathetic to the living-tree conception have
attempted to bring popular engagement and constitutional interpretation
together. For instance, Robert Post and Reva Siegel advance a conception of
constitutionalism according to which constitutional doctrine is responsive to
popular movements and to the views of elected officials.41 They thus maintain
that “constitutional meaning bends to the insistence of popular beliefs”.42
This responsiveness to popular beliefs, however, also falls short of giving citi-
zens an actual role in proposing and deciding on the content of their constitu-
tion: citizens might be able to influence constitutional interpretation, but lack
the faculty of making that influence decisive. Living constitutionalism, even in
its more progressive versions, is not about popular participation in constitu-
tional change.
Second, and this goes to the heart of the idea of openness, notice that by
focusing on interpretation, the living-tree conception of constitutionalism
can only achieve a very limited form of openness. That is to say, to the extent
that there are certain types of changes that are simply outside the scope of
constitutional interpretation (such as creating a new constitution or making
important alterations to the structure of government), giving judges the
power to expand the constitution – of making constitutional principles grow
– falls short of realising the principle of democratic openness. After all, the
most famous judicial formulation of the living-tree conception, contained in
the Privy Council’s decision in the case of Edwards v A.G. of Canada,43 clearly
recognised the limits of this doctrine: “The British North America Act
planted in Canada a living tree capable of growth and expansion within its
natural limits.”44 This is why Dworkin, who favours a theory of interpretation
similar to that of Waluchow, maintains that: “Even a judge who believed that
abstract justice requires economic equality cannot interpret the equal protec-
tion clause as making equality of wealth, or collective ownership of productive
resources, a constitutional requirement, because that interpretation simply
does not fit American history or practice, or the rest of the Constitution.”45
Since constitutional interpretation will not take us very far in terms of
making a regime consistent with the principle of democratic openness,
perhaps we should instead look at the terrain of constitutional amendments.
Regardless of the theory of judicial interpretation adopted by judges (and
regardless of the existence of the institution of judicial review of legislation),
the existence of a democratic amendment process may open the constitution
to important constitutional transformations and thus meet the demands of
this basic democratic principle. Unfortunately, this is not the case in actual
constitutional practice: most amendment rules embody, in important ways,
the constitutionalist aspiration to permanence.46 Take, for example the
US Constitution, generally recognised as a very rigid fundamental law.47
According to its amendment rule (Article V), two-thirds of both Houses
of Congress may propose amendments to the constitution, or two-thirds of
the state legislatures may apply for a Convention for proposing amendments.
The proposed amendments must then be ratified by three-fourths of state
legislatures, or by three-fourths of special state conventions.48
With such formidable hurdles, it is not surprising that the US Constitution
has been amended only 27 times in over two centuries, and it is telling that
the ratification of the Twenty-seventh Amendment took 200 years (it was
ratified in 1992, after being originally presented by James Madison in 1789).49
The small number of amendments, of course, might simply be a reflection of
a constitution whose content is almost unanimously endorsed, but this is not
the case: since 1789 more than 10,000 amendments have been proposed in
Congress.50 From the perspective of democratic openness there seems to be
two basic problems: the role of supermajorities and the ambiguities
surrounding the text of Article V. This amendment rule provides a minority
of one-third of each House of Congress (and a minority of one-fourth of the
states) with a veto power over any amendment proposal. By itself, this goes a
long way in realising constitutionalism’s Lycurgian tendencies.
Now, as noted above, the initiative to propose constitutional changes is not
only placed in Congress, but also in a Convention (which would arguably have
an unlimited power to propose amendments).51 However, even leaving aside
the difficulties involved in calling a Convention (created in part by the super-
majority rules in the initiative and ratification processes and the possibility
that Congress might refuse to call it or to send its proposals for ratification),52
there are certain ambiguities in the text of Article V that make its democratic
credentials questionable. For example, would the members of the Convention
be democratically elected? If they are elected, would they be elected by the
people at large or according to the principle of state equality (e.g., one dele-
gate for each state regardless of the size of the state’s population)? Would the
Convention have the power to adopt its own internal rules? Does the
Convention or Congress have the power to create an alternative ratification
procedure (such as a binding national referendum)? Could Congress transform
itself into a Convention?53 Granted, some of the problems identified above are
a result of the federal character of the United States. But the amendment rules
of most national constitutions are not that different.
To begin with, there is the obvious point that most constitutions contain
amendment rules designed to make constitutional changes less easy to achieve
than the adoption of ordinary laws, and this is usually done through a super-
majority requirement. A good example is provided by Article 79(2) of the
German Basic Law (1949), which expresses that amendments must be
approved by “two-thirds of the Members of the Bundestag and two-thirds of
the votes of the Bundesrat”. As we will see in later chapters, a supermajority
requirement directed at an ordinary legislative assembly seeking to alter the
constitutional text is by itself not a problem – as long as there is also an alter-
native, popularly initiated and participatory constitutional amendment
process, which is not the case in the overwhelming majority of constitutional
regimes. Nevertheless, many constitutions go beyond mere supermajority
requirements and make constitutional change even more difficult. Consider,
for example, the amendment rule of the Constitution of Spain (1978).
According to Article 168, a ‘total revision’ of the constitution (or a partial
revision that affects basic constitutional principles or fundamental rights)
requires the affirmative vote of two-thirds of each house and the immediate
dissolution of parliament and the calling of general elections. The new parlia-
ment must then approve, again by a two-thirds majority, the proposed changes
(which are then submitted to the electorate in a referendum).
This type of amendment rule comes very close to making constitutional
change impossible, but falls short of the ultimate expression of constitutional-
ism’s Lycurgian tendencies: eternity clauses. The most famous eternity clause
is contained in the previously mentioned Article 79 of the German Basic Law,
which places certain provisions out of the scope of the amending power:
“Amendments to this Basic Law affecting the division of the Federation into
Länder, their participation on principle in the legislative process, or the prin-
ciples laid down in Articles 1 and 20 [which among other things, protect
fundamental rights, the democratic character of the state, and the right of
resistance] shall be inadmissible.” Eternity clauses are, in fact, very common
and can be also found in the constitutions of Greece (Article 110), Italy
(Article 139) and Norway (Article 112). Other countries, such as India and
Colombia, whose constitutions lack eternity clauses, have nevertheless
declared (by judicial pronouncement) that there are ‘substantive’ limits to the
power of constitutional reform; that is, the basic structure of the constitution
or its fundamental principles cannot be altered through the ordinary amend-
ment procedure. All the countries mentioned in this section are usually char-
acterised as democracies, yet their constitutions seem to negate the principle
of democratic openness in important ways. Instead of allowing citizens to
come together as equals and reformulate or replace any constitutional norm,
they either give different sets of minorities a right to veto any reform proposal
or place certain provisions outside the power of constitutional reform.
Those countries might in fact enjoy high degrees of democratic governance,
but exhibit significant deficits of democracy at the level of the fundamental
laws. As noted above and as will be argued in Chapters 7 and 8, this does not
mean that supermajority requirements, eternity clauses and even the judicial
doctrine of unconstitutional constitutional amendments are incompatible
with democratic openness if they also contemplate the use of other, open and
participatory procedures of constitutional change. Now, not all constitutions
are like these, and in fact, even if uncommon, in some countries constitutional
amendments are not necessarily subject to supermajority requirements. For
example, according to Article 89 of the Constitution of France (1958), an
amendment may be approved by the majority of both houses plus a majority
of the electors in a referendum. And, of course, in countries with unwritten
constitutions like the United Kingdom and New Zealand,54 any statute of
constitutional significance may be altered as if it was an ordinary law. One
might argue that those written and unwritten constitutions are (to a certain
extent)55 consistent with the principle of democratic openness, but as we
will see below, they fail to meet the demands of the principle of popular
participation.
Negating popular participation

As with the principle of democratic openness, my objective in this section is
to show that the principle of popular participation is not given the attention
it deserves by contemporary constitutional theory and practice. It is useful to
begin this discussion by briefly looking at the ways in which some influential
strands of democratic theory have dealt with the question of popular partici-
pation and how they are reflected in actual political systems. An almost oblig-
atory point of departure here is the work of Joseph Schumpeter, whose
Capitalism, Socialism and Democracy influenced a wave of works in democratic
theory that appeared after the Second World War.56 Schumpeter meant to
offer a non-normative account of democracy, a description of how democracy
worked in the real world. With very good reasons, some authors have identi-
fied in Schumpeter and his followers an ideology “grounded upon a profound
distrust of the majority of ordinary men and women”57 and a lack of enthu-
siasm for democracy. But regardless of the merits or demerits of Schumpeter’s
approach, his conception exemplifies what democracy is now thought to
require from peoples and their governments.
Schumpeter described democracy as a certain type of institutional arrange-
ment designed to arrive at political decisions.58 Democracy was to be under-
stood as a method and disassociated from any particular ends, such as the
achievement of justice or the improvement of people’s lives.59 According to
Schumpeter, the institutional arrangement that we call democracy had to
be defined in a realistic way; the definition had to be true to what “sponsors of
the democratic method really mean by this term”.60 Thus, his conception
rejected the premise of what he called the ‘classical doctrine’ (identified with
authors such as Rousseau), which Schumpeter thought attributed to the
people a participatory and decision-making role that rested on empirically
unrealistic foundations. Schumpeter advanced the following definition of the
democracy: “That institutional arrangement for arriving at political decisions
in which individuals acquire the power to decide by means of a competitive
struggle for the people’s vote.”61 In Schumpeter’s theory, the people’s only
role in a democracy is that of voting occasionally for candidates in competitive
elections, not to decide policies: citizens have to understand that “once they
have elected an individual, a political action is his business and not theirs”.62
The main problem with Schumpeter’s definition of the ‘democratic method’
and its inconsistencies with the principle of popular participation is not that
it might encounter theoretical difficulties or that it might offend democratic
sensibilities. What is worrying is that he comes very close to describing the
kind of system that is routinely called democratic in our times. Samuel
Huntington expressed this very well in his triumphal claim that by the 1970s,
“the debate was over and Schumpeter had won”.63 For instance, consider the
following statement by Joseph Nye, a leading liberal political thinker:
“Democracy is government by officials who are accountable and removable
by the majority of people in a jurisdiction.”64 This radical separation between
the rulers and ruled is far removed from what democracy meant just a few
centuries ago. In that respect, it would be no exaggeration to say that dem-
ocracy has become a form of government that most eighteenth-century anti-
democrats would be willing to support and champion, and in which the
participation of citizens is limited to voting every few years in regular
elections and perhaps giving their opinions to pollsters.
Robert Dahl’s theory of polyarchy, briefly mentioned in the previous
chapter, can in that sense be understood as a recognition of the failure of
contemporary states to meet the demands of democracy. A polyarchy exists in
a country whose institutions satisfy the minimal requirements of the demo-
cratic process. These institutions require: (1) that elected officials have control
over governmental decisions about policy; (2) that they are elected in rela-
tively frequent, fair and free elections; (3) that the right to vote is extended to
all adults; (4) that most adults have the right to run for public office; (5) the
protection of the freedom of expression; (6) that the citizens have access to
alternative sources of information that are not monopolised by the govern-
ment or any single group; and (7) that they have the right to form autono-
mous associations, such as political parties, which attempt to influence the
government by competing in elections and by other peaceful means.65 As
Dahl acknowledges, the idea of democracy has become almost universal today,
and it is the standard that almost all contemporary regimes claim to uphold
and considered to be the basic criterion of legitimacy for any political system.66
But as his theory of polyarchy suggests, what is taken for democracy is the
regular election of representatives and the protection of fundamental rights.
Naturally, not all democratic theorists agree with the desirability of the
‘already existing democracy’ described by authors such as Schumpeter and
Dahl, and a number of ‘participatory democrats’ have provided alternative
conceptions that combine institutions of direct and representative democracy
in order to give citizens a more meaningful role in political decision-making.
For example, C.B. Macpherson proposed a combination of a “pyramidal
system with direct democracy at the base [e.g., neighbourhoods] and dele-
gated democracy at every level above that (e.g., cities)”,67 and the existence of
political parties which would ideally also operate according to the pyramidal
system. Other participatory democrats, such as Carole Pateman and Benjamin
Barber, also emphasise the importance of popular participation at different
levels of society, such as the workplace and local communities.68 More recently,
authors such as Fung, Sabel and Cohen, mentioned earlier, have also devel-
oped in various ways the connections between participation, deliberation and
democracy.69 The work of these authors, of course, has not been successful in
redefining what are generally seen as the demands imposed by the democratic
ideal on a political regime: the dominant view of democracy, the one practised
by states and politicians, does not require anything more than what Dahl
identified as a polyarchy.70
Perhaps more importantly for my purposes in this book, most of the work
of participatory democrats is directed at what I identified in the previous
chapter as democratic governance (and certain forms of local democracy). That
is to say, participatory democrats are not normally engaged in proposals for
increasing popular participation in constitutional change. And, since contem-
porary constitutional theory has occupied itself with the debate about judicial
review of legislation (in finding new ways of addressing the question of whether
courts or legislatures should have the last word about the meaning and scope
of constitutional protections), the actual participation of citizens in constitu-
tional change is rarely considered by constitutional scholars.71 A good example
is the work of Bruce Ackerman, whose theory of constitutional change is full
of references to ‘the People’. Ackerman’s central claim emerges from the idea
that the United States has a dualist constitution. By that, he means that the
constitution seeks to distinguish between normal and constitutional politics.72
These latter periods of higher law-making are to be understood as the ‘highest
kind of politics’, the moments in which ‘We the People’ speak without being
restrained by pre-established constitutional forms.73 During times of normal
politics, in contrast, it is only the government who speaks. Political representa-
tion must thus be seen with suspicion and the actions of the legislature should
not be mistaken for the genuine voice of ‘We the People Assembled’.74
Despite his emphasis in ‘the People’ as the protagonist of important consti-
tutional transformations, Ackerman’s take on popular participation in consti-
tutional reform is mainly about getting the support of the people, about being
able to speak in its name. Constitutional politics is a complex process involving
Congress, the Executive and the Supreme Court, in which ordinary citizens
play the minor role of expressing their support for change, mainly through
regular elections. In other words, Ackerman’s conception of constitutional
politics is not accompanied by mechanisms that would increase the participa-
tion of citizens in re-constituting the juridical system. Consider, for example,
the mechanism Ackerman presents as a democratically superior alternative to
Article V. According to Ackerman, constitutional change could take place
through a special statute that he calls the ‘Popular Sovereignty Initiative’.
“Proposed by a (second-term) President,” writes Ackerman, “this Initiative
should be submitted to Congress for two-thirds approval, and should then be
submitted to the voters at the next two Presidential elections. If it passes these
tests, it should be accorded constitutional status by the Supreme Court.”75
Such a mechanism can hardly be made consistent with the principle of popular
participation, as it leaves the process of constitutional change almost exclu-
sively in the hands of the ordinary institutions of government.
In this sense, Ackerman presents neither arguments nor proposals for an
increase in the actual participation of citizens – understood as involving
opportunities for proposing, deliberating and deciding on the content of the
constitution – in constitutional remaking, unless one understands popular
participation to be exhausted in the actions of a government that claims to act
with the support of ‘We the People’ (as expressed in subsequent general elec-
tions). Moreover, just like the living-tree approach, Ackerman’s method of
constitutional change can hardly be effective in altering what Sanford Levinson
has identified as the basic structural elements of the US political system (e.g.,
the inability to remove a President who has lost the confidence of the elec-
torate, the allocation of power in the US Senate and Article V itself).76 While
helpfully distinguishing between the people and the legislature (and in that
respect avoiding the problem previously identified in Waldron’s approach),
Ackerman proceeds in a highly theoretical way, without attempting to
provide ways for flesh-and-blood human beings to directly deliberate and
decide about the content of their constitution. To be fair to Ackerman, one
might argue that he is operating in the context of a very rigid constitution
and merely attempting to find a way of showing that constitutional change
may take place outside the confines of the previously discussed Article V.77
But even constitutional theorists that have unwritten (and flexible) consti-
tutions as their main frame of reference do not pay proper attention to the
participation of ordinary citizens in the activity of constitutional reform.
Consider, for example, Jeffrey Goldsworthy’s defence of parliamentary sover-
eignty, which claims to rest on strongly democratic grounds. Goldsworthy
argues that democracy requires “government by ordinary people”, and that
according to the democratic ideal, “people have a right to participate on equal
terms in the political decision-making that affects their lives”.78 Moreover,
democracy assumes that ordinary people “possess the intelligence, knowledge
and virtue needed to do so”.79 As will be obvious from this and the previous
chapters, I agree with those statements. However, there are many different
ways of understanding the implications of the phrase “the people’s right to
participate on equal terms in the political decision-making”.80 Goldsworthy
believes that an elected parliament whose decisions cannot be struck down by
an unelected judiciary is the best embodiment of the form of government that
such a phrase invokes. But it is very unclear why it is that we can equate a
system of parliamentary sovereignty with the idea of “government by ordinary
people”.81
To the extent to which the formal opportunities for ordinary citizens to
participate in politics in a traditional system of parliamentary sovereignty is
that of electing law-makers, one might as well say that the democratic ideal
would also be realised by having political decisions made by a democratically
elected and all-powerful monarch, or by a committee of ‘ordinary citizens’
elected for life by a popular majority. The democratic ideal, I have suggested
in this chapter, cannot be fully realised in a contemporary society; the best
that we can do is to find ways that approximate to it as much as possible, and
that in part requires mechanisms of law-making consistent with the princi-
ples of democratic openness and popular participation. In the context of
democratic governance, Goldsworthy’s defence of parliamentary sovereignty
is largely consistent with these basic democratic principles. Fair enough, in
some particular contexts there might be a possibility of extending the oppor-
tunities for direct popular participation – as by recognising the citizenry’s
right to present legislation by popular initiative or by establishing different
mechanisms for participatory decision-making at a local level – and
Goldsworthy’s analysis is certainly consistent with providing additional
opportunities for participation beyond the formal parliamentary process.
The problem is that the emphasis on parliamentary sovereignty moves our
attention away from the idea that in a democracy, it is ‘the people’ that is
sovereign (and from the fact that a parliament and the people are not the same
things). We will come back to this point in the next chapter, when the theory
of constituent power will be considered at length, but it is important to
emphasise that in those instances in which sovereignty is more visible, such as
periods of important constitutional transformations (i.e., in the context of
democracy at the level of the fundamental laws), we can (and should) depart
from the tradition of parliamentary sovereignty in order to come closer to the
realisation of the democratic ideal. This does not mean, however, that written
constitutions fare any better in terms of providing citizens with the opportu-
nity to meaningfully participate in an episode of constitutional change. When
one looks at the amendment formulas of the traditional liberal constitution,
as the ones briefly mentioned in the previous section of this chapter, the lack
of mechanisms for popular participation is apparent.
First, the power to initiate a process of constitutional change normally lies
in the hands of ordinary government officials. A good example is Article 134
of the Constitution of the Russian Federation (1993), which gives the initia-
tive to propose constitutional amendments to several entities and officials,
including the President, the State Duma and the Federation Council. Second,
just as with the adoption of ordinary laws, the official deliberation about the
proposed changes takes place among legislators, who are normally not explic-
itly authorised by the people to alter the fundamental law (this is also true of
unwritten constitutions). Nevertheless, some constitutions, as exemplified in
the previously mentioned provisions of the French and Spanish constitutions,
condition the validity of some types of constitutional changes to the positive
vote of the electorate in a referendum. But a referendum, as we saw earlier,
cannot meet the demands of the principle of popular participation by itself,
as it gives citizens a mere veto power over proposals of constitutional change.
In that respect, as Spanish constitutional scholar Pedro de Vega has argued,
a constitutional referendum “does not have the objective of legitimating
constitutional change through an act of the sovereign people”82 but of making
change more difficult.
Concluding remarks
This chapter defended a particular conception of democracy, one which comes
accompanied by the basic principles of democratic openness and popular
participation. These two principles, I argued, are negated in important ways
by the conception of democracy reflected in the dominant constitutional
tradition. As Unger has written, such a tradition is characterised by two
features: “a style of constitutional organization of government slowing poli-
tics down . . . and a set of practices and institutions helping to keep society at
a relatively low level of political mobilization”.83 Those features, exemplified
in the constitutional theories and amendment provisions surveyed in this
chapter, are in direct conflict with the basic principles of democracy. So it
seems that when it comes to the relationship between constitutionalism and
democracy, there is conflict and tension all the way along. In the next chapter
I will explore the theory of constituent power, which is, in my view, the
missing link in the constitutionalism–democracy debate. Constituent power,
in my view, provides a promising way of looking at the relationship between
constitutionalism and democracy and, more importantly, invites the develop-
ment of a weak constitutionalism, one that can live up to the demands
of the democratic ideal. As will be argued in the rest of this book, only a
regime that approaches constituent power not as a threat but as the possibility
of correcting existing injustices can be considered legitimate from a demo-
cratic perspective.
Notes
1 As briefly noted in Chapter 1, the value of the conception of democracy that I sub-
scribe to through this book is directly connected to the ideal of self-rule: allowing
a group of human beings to rule themselves as free and equal citizens (as opposed
to a system in which a popular majority is ruled by an external power or a self-
imposed elite). In this respect, it would be characterised by some authors as popu-
list democracy. See for example Amy Gutmann, Democracy’, in Robert E Goodin
and Philip Pettit (eds), A Companion to Contemporary Political Philosophy, Oxford:
Blackwell Publishers, 1997, p 19. Such a conception of democracy is, in my view,
particularly relevant today when, as John McCormick has noted, “[r]ather than
facilitating popular rule, electoral democracies appear to permit and perhaps even
encourage political and economic elites to enrich themselves at the public’s
expense and encroach upon the liberty of ordinary citizens”. John McCormick,
Machiavellian Democracy, Cambridge: Cambridge University Press, 2011, p vii.
2 See Ellen Meiksins Wood, ‘Democracy: An Idea of Ambiguous Ancestry’, in
J. Peter Euben et al (eds), Athenian Political Thought and the Reconstruction of
American Democracy, Ithaca: Cornell University Press, 1994, p 59.
3 Cornelius Castoriadis, ‘Socialism and Autonomous Society’, Telos, 1980, vol 91,
p 104. See also Allan C. Hutchinson, It’s All in the Game: A Non-Foundationalist
Account of Law and Adjudication, Durham: Duke University Press, 2000.
4 Sheldon S. Wolin, ‘The Liberal/Democratic Divide: On Rawls’s Political Liber-
alism’, Political Theory, 1996, vol 24(1), p 98.
5 See Alan Keenan, Democracy in Question: Democratic Openness in a Time of Political
Closure, Stanford: Stanford University Press, 2003, p 10.
6 Claude Lefort, ‘The Image of the Body and Totalitarianism’, in Political Forms of
Modern Society, Cambridge: Cambridge University Press, 1986, pp 303–304.
7 See Jeremy Waldron, Law and Disagreement, Oxford: Clarendon Press, 1999,
pp 255, 291.
8 The example is Waldron’s.
9 As Walter Murphy has expressed, “if citizens destroy their own right to have
rights, they destroy their authority to legitimize a political system”. Walter
Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order,
Baltimore: Johns Hopkins University Press, 2007, p 507.
10 Cornelius Castoriadis, ‘The Greek Polis and the Creation of Democracy’, in
David Ames (ed), Castoriadis Reader, Oxford: Blackwell Publishers, 1997, p 282.
11 Kathleen Sullivan, “Constitutional Amendmentitis”, The American Prospect, Fall,
1995.
12 Castoriadis, ‘The Greek Polis and the Creation of Democracy’, p 283.
13 Waldron, Law and Disagreement, p 310. Robert Dahl makes a similar point in a
hypothetical dialogue between a procedural and a constitutional democrat.
Robert Dahl, Democracy and its Critics, New Haven: Yale University Press, 1989,
pp 172–173.
14 The paradigmatic example would be Germany under the Weimar constitution.
15 As John Rawls has stated: “[T]here is no human institution -political or social,
judicial or ecclesiastical- that can guarantee that legitimate (or just) laws are
always enacted and just rights always respected.” John Rawls, Political Liberal-
ism, New York: Columbia University Press, 2005, p 416. See also Christopher
Zurn, ‘Deliberative Democracy and Constitutional Review’, Law and Philosophy,
2002, vol 21, p 513.
16 In some contexts it will not be possible to make use of the most participatory pro-
cedures that would be otherwise technically available. For example, subjecting
the adoption of every law to it having been proposed by popular initiative and
approved by popular vote would be more participatory than the typical law-
making process through a representative assembly, but it would be impractical
and probably undesirable (since it would put too much of a burden on citizens).
However, in other contexts, like the adoption of fundamental constitutional
changes (as opposed to ordinary ones), it would be possible to use much more
participatory procedures. The distinction between ordinary and fundamental
constitutional change will be discussed in Chapter 7.
17 Castoriadis, ‘The Greek Polis and the Creation of Democracy’, p 275.
18 Jürgen Habermas, ‘Constitutional Democracy: A Paradoxical Union of Contra-
dictory Principles?’, Political Theory, 2001, vol 29, p 776.
20 For a useful discussion, see David Held, Models of Democracy, Stanford: Stanford
21 Barry Holden, Understanding Liberal Democracy, London: Philip Allan, 1988, p 2.
22 The Federalist no. 55, Jacob Cooke (ed), Connecticut: Wesleyan University Press,
1961. For similar statements against popular assemblies and direct forms
of democracy, see Jean Bodin, Six Books of the Commonwealth, Cambridge:
Cambridge University Press, 2004; Adam Ferguson, An Essay on the History of
Civil Society, Edinburgh: Edinburgh University Press Paperbacks, 1978, p 187;
The Federalist, no. 10.
23 Joshua Cohen and Charles Sabel, ‘Directly-Deliberative Polyarchy’, European
Law Journal, 1997, vol 3(4), p 322.
24 John Burnheim, Is Democracy Possible? The Alternative to Electoral Politics,
Cambridge: Polity Press, 1985, p 2.
25 Nadia Urbinati, Representative Democracy: Principles and Genealogy, Chicago:
Chicago University Press, 2006, p 4. See also Jeremy Waldron, ‘Representative
Lawmaking’, Boston University Law Review 2009, vol 89, p 335.
26 Joshua Cohen and Archon Fung, ‘Radical Democracy’, Swiss Journal of Political
Science, 2004, vol 10(4), p 23.
27 Ibid.
28 Habermas, for example, uses the phrase “informal public sphere” to identify a
space in which social movements and other groups deliberate about political
matters independently from the state. Jürgen Habermas, Between Facts and
Norms: Contributions to a Discourse Theory of Law and Democracy, Cambridge: MIT
Press, 1996, p 301.
29 Margaret Canovan, The People, Cambridge: Polity Press, 2005, pp 113–114.
30 See Burnheim, Is Democracy Possible?, p 92.
31 New technological developments ameliorate in important ways this second
objection to the referendum, but would not fully deal with the problem of
deliberation. For a proposal that seeks to do away with representative democracy
and that would have randomly selected citizens determining state policy, see
Burnheim, Is Democracy Possible?
32 This, however, notwithstanding the fact that there seems to be a general trend
towards the use of referendums and initiatives, which some scholars associate
with a lack of confidence in legislatures. See John G. Matsusaka, ‘The Eclipse of
Legislatures: Direct Democracy in the 21st Century’, Public Choice, 2005, vol
124, p 157.
33 The most famous example is James S. Fishkin, Democracy and Deliberation:
New Directions for Democratic Reform, New Haven, CT: Yale University Press,
1991.
34 This does not mean that these mechanisms cannot be combined with other
forms of direct democracy and make them a truly democratic device. The
Citizens’ Assemblies in British Columbia and Ontario, in which the recommen-
dations of an assembly of randomly selected citizens were put to popular
vote, are thus a step in the right direction. For a discussion, see Frank Fischer,
Democracy and Expertise: Reorienting Policy Inquiry, Oxford: Oxford University
Press, 2009.
35 Roberto Mangabeira Unger, Democracy Realized: The Progressive Alternative, New
York: Verso, 2001, p 219.
36 Ibid.
37 Waluchow, A Common Law Theory of Judicial Review: The Living Tree, New York:
Cambridge University Press, 2007 and Wil Waluchow, ‘Constitutions as Living
Trees: An Idiot Defends’, Canadian Journal of Law and Jurisprudence, 2005, vol
18, p 207.
38 Waluchow, A Common Law Theory of Judicial Review, p 183.
39 Ibid., p 136.
40 Ibid., p 228.
41 See Robert Post and Reva Siegel, ‘Roe Rage: Democratic Constitutionalism and
Backlash’, 42 Harvard Civil Rights-Civil Liberties Law Review, 2007, vol 42,
p 373. For a history of the US Supreme Court that seeks to show that the court
has actually been responsive to democratic politics, see Barry Friedman, The
Will of the People: How Public Opinion has Influenced the Supreme Court and Shaped the
Meaning of the Constitution, New York: Farrar, Straus & Giroux, 2009.
42 Post and Siegel, ‘Roe Rage’, p 376.
43 [1930] 1 DLR 98, AC 124
44 Emphasis added.
Cambridge: Harvard University Press, 1996, p 11.
46 Since he is not committed to a particularly strong form of democracy,
Waluchow suggests that the problem of a difficult amendment process is not so
serious when constitutions are not seen as “finished product[s] handed down in a
form fixed until such time as its amending formula is invoked successfully or a
revolution occurs”, but as a work in progress. Waluchow, A Common Law Theory
of Judicial Review, p 69. However, as the previous critique of the living-tree
conception suggests, that will not do, at least not if one takes the principle of
democratic openness seriously.
47 Donald S. Lutz, ‘Toward a Theory of Constitutional Amendment’, in Sanford
Levinson (ed), Responding to Imperfection: Theory and Practice of Constitutional Amend-
ment, Princeton: Princeton University Press, 1995, p 260. According to Lutz, the
US Constitution had the second most difficult amendment process in 1995 (a
level of difficulty only surpassed by the now extinct Constitution of Yugoslavia).
48 The relevant text of the article reads as follows: “The Congress, whenever two-
thirds of both Houses shall deem it necessary, shall propose Amendments to
this Constitution or, on the Application of the Legislatures of two-thirds
of the several States, shall call a Convention for proposing Amendments,
which, in either Case, shall be valid to all Intents and Purposes, as part of this
Constitution, when ratified by the Legislatures of three-fourths of the several
States, or by Conventions in three-fourths thereof, as the one or the other Mode
of Ratification may be proposed by the Congress . . .”
49 Richard Bernstein, ‘The Sleeper Wakes: The History and Legacy of the Twenty-
Seventh Amendment’, Fordham Law Review, 1992, vol 61, p 497.
50 C-Span’s Capitol Questions, C-Span.org (2000), www.c-span.org/questions/
weekly54.asp.
51 For a discussion of the unlimited or limited power of an Article V Convention, see
Walter E. Dellinger, ‘The Recurring Question of the “Limited” Constitutional
Convention’, Yale Law Journal, 1979, vol 88, p 1623.
52 In fact, according to some interpretations of Article V, the required number of
states had applied for a Convention as of 1993, but Congress did not convene it.
Michael Stokes Paulsen, ‘How to Count to Thirty-Four: The Constitutional Case
for a Constitutional Convention’, Harvard Journal of Law and Public Policy, 2011
vol 34, p 856. By 2010, the number of states asking for a Convention had
decreased from 45 to 33 (34 being the requisite number of states).
53 Some of these questions are considered in Michael B. Rappaport, ‘Reforming
Article V: The Problems Created by the National Convention Amendment
Method and How to Fix Them’, Virginia Law Review, 2010, vol 96, p 1523. See
also Richard B. Bernstein (with Jerome Agenl), Amending America: If We Love the
Constitution So Much, Why Do We Keep Trying to Change It?, Lawrence: University
Press of Kansas, 1993.
54 In New Zealand, Section 268(2) of the Electoral Act entrenches certain provi-
sions of that Act and of the Constitution Act 1986, and establishes that they can
only be repealed or amended by 75 per cent of all the members of the House of
Representatives, or by a majority of the electors in a referendum.
55 ‘To a certain extent’, since the principle of democratic openness, as noted earlier,
is not only about ‘openness’ but also about an openness than can be accessed by
ordinary citizens, a democratic openness.
56 J.A. Schumpeter, Capitalism, Socialism and Democracy, London: Allen and Unwin,
1976. Examples of these works include Giovanni Sartori, Democratic Theory,
Detroit: Wayne State University Press, 1962; Harry Eckstein, A Theory of Stable
Democracy, Princeton: Princeton University Press, 1961; Anthony Downs, An
Economic Theory of Democracy, New York: Harper and Row, 1956; and Robert A.
Dahl, A Preface to Democratic Theory, Chicago: The University of Chicago Press,
1970.
57 Peter Bachrach, The Theory of Democratic Elitism: A Critique, Boston: Little,
Brown, 1967, p 93.
58 Schumpeter, Capitalism, Socialism and Democracy, p 243.
59 Michael Saward, Democracy, Cambridge: Polity Press, 2003, p 39.
60 Schumpeter, Capitalism, Socialism and Democracy, p 269.
61 Ibid., p 269.
62 Ibid., p 295. The limited role that Schumpeter assigns to the majority of citi-
zens rests on the view that most people are ignorant about political issues, irra-
tional in their preferences, easily manipulated by politicians, etc. See Saward,
Democracy, p 42.
63 Samuel Huntington, The Third Wave: Democratization in the Late Twentieth
Century, Norman: University of Oklahoma Press, 1991, p 6.
64 Joseph Nye, The Paradox of American Power: Why the World’s Only Superpower
Can’t Go it Alone, Oxford: Oxford University Press, 2002, p 109.
65 Dahl, Democracy and Its Critics, p 233.
66 Ibid.
67 C.B. McPherson, The Life and Times of Liberal Democracy, Oxford: Oxford Univer-
sity Press, 1977, pp 108, 113.
68 Carole Pateman, Participation and Democratic Theory, Cambridge: Cambridge
University Press, 1970; Benjamin Barber, Strong Democracy: Participatory Politics
for a New Age, Berkeley: University of California Press, 1984.
69 See Cohen and Sabel, ‘Directly-Deliberative Polyarchy’; Cohen and Fung,
‘Radical Democracy’.
70 As Wolin has stated, the requirements of ‘democracy’ are so precise that world
powers periodically dispatch experts to countries of the so-called ‘Third World’
to determine whether they have been met. Sheldon Wolin, ‘Fugitive Democ-
racy’, in Seyla Benhabib (ed), Democracy and Difference: Contesting the Boundaries of
the Political, Princeton: Princeton University Press, 1996, p 42.
71 One exception is Ethan Leib who, writing in a US context, proposes the creation
of a ‘popular branch’ of government (which would operate through juries com-
posed of randomly selected citizens) and have the function of enacting laws and
constitutional amendments. However, Leib thinks that the popular branch
should be subject to a supermajority requirement, its proposals may be vetoed
by the executive or legislative branch (in the latter case by a supermajority of
legislators), and its decisions would be subject to judicial review: courts would
thus be authorised “to uphold basic constitutional provisions to avert the
tyranny of the majority and unacceptable deliberative findings”. Ethan J Leib,
Deliberative Democracy in America: A Proposal for a Popular Branch of Government,
University Park: Pennsylvania State University Press, 2004, pp 12, 22, 83.
72 Bruce Ackerman, We the People: Foundations, London: Belknap Press of Harvard
University Press, 1991, p 6
73 Bruce Ackerman, ‘Neo-Federalism?’, in Jon Elster and Rune Slagstad (eds),
Constitutionalism and Democracy, New York: Cambridge University Press, 1988,
p 163. Ackerman identifies three periods of constitutional politics in US history:
the founding, the Civil War amendments and the judicial triumph of the
New Deal.
74 Ibid., p 167.
75 Bruce Ackerman, We the People 2: Transformations, London: Belknap Press of
Harvard University Press, 1998, p 415.
76 Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes
Wrong (And How the People can Correct It, New York: Oxford University Press,
2006, p 22.
77 For a view according to which Article V only applies to government and not to
‘the people’, who always remain free to change the constitution through other
means (e.g., a national referendum), see Akhil Reed Amar, ‘The Consent of the
Governed: Constitutional Amendment Outside Article V’, Columbia Law Review,
1994, vol 94, p 457.
78 Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates, Cambridge:
79 Ibid., p 10.
80 Ibid., p 9.
81 Ibid., p 9.
82 Pedro de Vega, La Reforma Constitucional y la Problemática del Poder Constituyente,
Madrid: Técnos, 1985, p 302. For de Vega, the constitutional referendum is
part of the system of checks and balances typical of the constitutional state, and
not a device for the exercise of constituent power. A similar conclusion was
reached by the Colombian Constitutional Court in its Opinion C-141 (2010),
which invalidated a controversial constitutional amendment about Presidential
re-election. This decision will be discussed in Chapter 7.
83 Unger, Democracy Realized, p 213.
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 representa-
tives 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 federa-
tion, but the creation of a new constitutional regime through a procedure not
contemplated by the constitution’s amendment rule. The controversy origi-
nated 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
80 The theory (and practice) of constituent power
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 constitu-
tional thought, might allow us to re-conceive the relationship between consti-
tutionalism 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 revolu-
tions, George Lawson and John Locke came close to developing its main ideas.
Not surprisingly, some authors see Locke and Lawson as theorists of constit-
uent 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 main-
tained, they were more interested in justifying resistance to an unjust govern-
ment than “to account for those historical moments of genuine rupture and
transformation”.8
The theory (and practice) of constituent power 81
George Lawson published his Politica Sacra et Civilis9 in 1657, engaging in
what has been aptly described as a “systematic and comprehensive reconstruc-
tion 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 common-
wealth, 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 consti-
tuted”, 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 jurisdic-
tion 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 exer-
cise its real majesty if they had just and necessary cause.20 When the condi-
tions 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 formu-
lations 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 parlia-
ment, 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 aristoc-
racy)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 consid-
ered 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 formula-
tion 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 repre-
sentative 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 consti-
tution, that the living could not waive their right to will even after consti-
tuting 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 repre-
sentative 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 repre-
sentatives 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 irreconcil-
able 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 constitu-
tion, “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, conse-
quently, 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 partic-
ular 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 intro-
duced 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 constit-
uent 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 estab-
lished 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 constit-
uent power as an absolute and unlimited constitution-making faculty, radi-
cally unbound by the established constitutional forms and incapable of being
limited by any form of positive law. Nevertheless, Schmitt developed the rela-
tionship 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 consti-
tution 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 [constit-
uent power]75 is not thereby expended and eliminated, because it was exer-
cised once. The political decision, which essentially means the constitution,
cannot have a reciprocal effect on its subject and eliminate its political exist-
ence.”76 “This political will,” he continued, “remains alongside and above the
constitution”.77 Far from being a ‘one-time’ event (which is the practical
reality in the context of most constitutions), the exercise of constituent power
remains an ever-present possibility.
As William Scheuerman has noted, for Schmitt, constituent power
continues to exist above and beyond the institutions of a liberal constitutional
regime.78 This is why, at least in part, constituent power should not be identi-
fied with the activity of founding a new state. In Schmitt, constituent power
presupposes the existence of the state, the existence of a people already organ-
ised politically. In the language of modern political theory, it is premised on
the idea that the ‘social contract’ is already in place, that the transition from
the state of nature to civil society has already occurred: “The social contract,
consequently, is already presupposed in the theory of [the constituent power
of the people] when one considers its construction necessary at all.”79
Accordingly, Schmitt argued that during the American Revolution the
concept of constituent power could not be identified with clarity, because the
episodes of constitution-making that followed the Declaration of Independence
coincided with the creation of a series of new states. But during the French
Revolution the novelty of this concept was fully appreciated. There, a politi-
cally conscious people decided to adopt a new constitution within a state that
pre-dated the revolution and continued to exist after it.80
Like Sieyes, Schmitt insisted that constituent power could not be limited
by law or regulated by any legal procedures; the will of the constituent subject
was to be seen as an “unmediated will”.81 “No constitutional law, not even a
[C]onstitution,” Schmitt wrote, “can confer [constituent power] and prescribe
the form of its initiation.”82 Nevertheless, he maintained that even though the
initiation of an exercise of constituent power could not be limited by any rules
or institutions, the “execution and formulation” of the decisions of the constit-
uent subject required certain organisation and procedures.83 Otherwise, the
constituent subject would remain in a state of powerlessness and disorganisa-
tion, unable to transform its will into law. In the context of modern democ-
racy, these procedures take different forms, but their paradigm is the National
Constituent Assembly that drafts a constitution (and whose work is some-
times, and under Schmitt’s view, ideally, subject to popular ratification before
it comes into effect).84 Although such an assembly acts as a ‘sovereign’ dictator
(in the sense that it is not bound by the established constitutional forms), it is
not itself the sovereign. As such, it must always act in “the name of and under
commission from the people, which can at any time decommission its agents
through a political act”.85
Schmitt combated Sieyes’ strategy of combining the democratic theory of
the people’s constituent power with the “antidemocratic theory of the repre-
sentation of the people’s will”.86 He rejected this idea because he thought that
the will of the people,87 the constituent power, could not be represented, and
that any attempt to do so supposed the replacement of democracy with aris-
tocracy.88 In that respect, and unlike Sieyes, Schmitt thought that it would
have been more appropriate for the constitution drafted by the French
Constituent Assembly to have been directly ratified by the French people in
1791.89 As Andrew Arato has noted, Schmitt “considers it a fatal omission
that, in line with Sieyes’ peculiar interpretation of Rousseau, the assembly did
not consider it essential to have its constitutional product ratified in a popular
referendum”.90
Even if, as noted earlier, a referendum is not a particularly participatory and
deliberative institution, I believe that we can identify here an important
distinction between Sieyes and Schmitt. While the former thought that the
constituent power could be represented, the latter insisted that it could only
be delegated. Under Schmitt’s view, a constituent assembly is not the bearer of
the constituent power and should not be confused with it.91 The practical
implication of this idea is that a constituent assembly does not have the legal
power to create a constitution by itself, without a draft having been ratified by
the people (an idea reflected in the institution of the ratificatory referendum,
where the electorate affirms – or negates – that the proposed constitution is
‘theirs’).
However, Schmitt’s view about what counts as a manifestation of the ‘will
of the people’ is inconsistent with most contemporary formulations of democ-
racy (as well as with the one defended in Chapter 4) as it is does not seem to
require any meaningful degree of participation and deliberation. In fact,
Schmitt advanced the problematic view that the will of the people is best
expressed through the act of acclamation, exemplified in a multitude that
answers ‘yes’ or ‘no’ to a fundamental political question.92 Nevertheless, as we
will see in Chapter 6, when combined with a strong conception of democracy,
Schmitt’s approach can assist us in upsetting the balance between constitu-
tionalism and democracy in favour of the latter.
Constituent power in contemporary constitutionalism

Sieyes and Schmitt were no democrats, and yet their theories of constituent
power have important democratic implications. Constituent power, in Ulrich
Preuss’ words, is “an important part of the doctrine of popular sovereignty”93:
constituent power means that the people, in the exercise of their (popular)
sovereignty, may adopt any constitution they want. It is not surprising that
the actual practice of constitutional change rarely complies with constituent
power’s prescriptive aspects. Not only are constitutions sometimes adopted in
a context in which the constitution-making body is not free to adopt any
constitution it wants,94 but some constitutions are also adopted under mili-
tary occupation.95 In terms of constituent power’s collective aspects, even the
constitutions of the world’s leading democracies have been adopted and can be
changed by government officials with little participation from the public, as
we saw in Chapter 4.96
Nevertheless, as we will see in later chapters, some constitutions and pro-
cesses of constitutional change, particularly in the Latin American region,
seem to take the practical implications of the theory of constituent power
seriously. To be sure, the fact that the practice of constitution-making and
constitutional reform is frequently inconsistent with the theory of constituent
power does not mean that it should be discarded. At the very least, the concept
of constituent power provides us with some general indications about how
constitutions should be created and re-created in a democracy; about how
the constitutional regime should approach the sovereignty of the people.
In short, about what should be the relationship between democracy and
constitutionalism.
This section will briefly examine some of the treatment that constituent
power has received in the Anglo- and Latin American constitutional tradi-
tions. A full examination of this topic would, of course, require an additional
book, so this section will be limited to a few examples of how the concept of
constituent power has been deployed (or rejected), in some contexts, begin-
ning with modern Britain. Since the theory of constituent power was devel-
oped in the tradition of written and supreme constitutions, it is not surprising
that, until very recently, references to it in English constitutional theory are
scarce.97 One of the reasons for this absence is the historical force of the
doctrine of parliamentary sovereignty. In an important sense, the idea of a
sovereign parliament that can alter the constitution by a simple majority vote
rests on a rejection of the theory of the constituent power of the people (which
is why, as we suggested earlier, Lawson’s conception explicitly rejects the very
basis of parliamentary sovereignty). This point was captured nicely by Alexis
de Tocqueville when he described the Westminster Parliament as “at once a
legislative and constituent assembly”.98
Albert Venn Dicey, the principal exponent of the orthodox version of
parliamentary sovereignty in the United Kingdom, agreed with the French
author in his famous Introduction to the Study of the Law of the Constitution.99
According to Dicey, de Tocqueville provided a “convenient formula” for
explaining the principle that Parliament may create any law it wants.100
Distancing the English system from the concept of constituent power,
he added that since under the English constitution there was no clear distinc-
tion between fundamental and non-fundamental laws, “the very language
expressing the difference between a ‘legislative’ assembly which can change
ordinary laws and a ‘constituent’ assembly which can engage in fundamental
constitutional change . . . has to be borrowed from the political phraseology
of foreign countries”.101 An implication of this view is that under the
English constitution the distinction between people and legislature is weak or
non-existent: the people, even if sovereign in some sort of abstract way, can
only act through parliament.
Any strong distinction between parliament and the people threatens the
doctrine of parliamentary sovereignty as it opens the way for arguments (like
Lawson’s) that seek to justify the existence of legal limitations on parliament’s
law-making power by reference to a superior popular sovereign.102 This is
partly why Edmund Morgan once wrote that in England, representatives
“invented the sovereignty of the people in order to claim it for themselves”,
and saw it as existing only in the actions of a legislature who claimed to act in
the name of the citizenry.103 Constituent power, Dicey suggested, is a foreign
concept, one that belongs to countries with written and entrenched constitu-
tions and is based on a distinction between a limited legislature and a sover-
eign people, attributing the latter with a superior power of constitutional
change. According to Dicey, even if the people could be considered the
political sovereign under the English constitution, the legal sovereign was the
Crown-in-Parliament, and legal sovereignty enables its bearer to create any
constitutional content it wishes.104
But Dicey seems to have abandoned this view in later writings, where he
identified “the electors” as “the true sovereign of the country”, and even
complained that “[our] present scheme of government . . ., while it ultimately
refers every question to the decisions of the electors, is so worked as to prevent
the electors from deciding any questions on its intrinsic merits”.105 In a language
strongly reminiscent of the opening lines of Sieyes’ What is the Third Estate?, he
added that under the current system, “Party becomes everything, the Nation
sinks to nothing.”106 Taking this idea to its apparent natural consequences, he
proposed the enactment of a ‘Referendum Act’ that would provide that no Bill
affecting what he considered to be fundamental aspects of the constitution
(Dicey specifically mentions the rights of the Crown, the constitution of either
House of Parliament, and the Acts of Union), “should become law until it
had been submitted to the electors of the United Kingdom for their approval
or disapproval”.107 Such an Act, he wrote, would make everyone realise “the
difference between any ordinary law and the fundamental laws of the realm”.108
One can thus find in Dicey at least a germ of the idea of the people’s constit-
uent power, and of its role in the making and re-making of constitutions.109
The recent national referendum on a change to an ‘Alternative Vote’ electoral
system, whose results were binding for government, might suggest that the
United Kingdom is moving in the direction of a constitutional recognition
of the sovereignty of the people.110 Nevertheless, although the institution
of a referendum frequently signals some sort of commitment to the idea of a
sovereign people (as opposed to a sovereign legislature), a referendum can
rarely be characterised as a proper means for the exercise of constituent power.
As Dietrich Conrad has observed, the democratic value of a constitutional
referendum is dubious, since it must be restricted “to a few questions to be
answered yes or no, [and] since it does not give the people an active part in
moulding constitutional details and is, at its best, more in the nature of an
ultimate veto power”.111
Put differently, and as I have maintained in previous chapters, a constitu-
tional referendum cannot satisfy the principles of democratic openness and
popular participation. A referendum presents citizens with a set of pre-
designed alternatives that they cannot change, and it does not allow them to
put into question different constitutional provisions, much less the constitu-
tional regime as a whole. It also fails to guarantee the degree of popular
involvement that the principle of popular participation mandates. Rather
than participating in proposing, deliberating and deciding on a set of funda-
mental constitutional changes, citizens are merely allowed to consent or reject
them. Despite some weak indications to the contrary, it seems, as Martin
Loughlin has maintained, that the concept of constituent power serves no
juristic function in contemporary Britain: constituent power appears to have
been absorbed by the doctrine of parliamentary sovereignty.112
Interestingly, in the United States (which rejected the doctrine of parlia-
mentary sovereignty in the eighteenth century) the concept of constituent
power has been notoriously absent as well. It is true that one can find refer-
ences to the term ‘constituent power’ in early American literature, and the
idea that the people were free to abolish or alter the constitution through
extra-legal procedures was very much present in eighteenth-century North
America.113 But in contemporary times one rarely finds any references to the
theory of constituent power (or even indications of its existence) in the works
of most constitutional scholars. In fact, one can understand Article V of the
US Constitution as ‘burying’ constituent power under an amendment formula
that can technically be used to change any constitutional provision, but the
requirements of which are extremely difficult to meet.114 In such a situation,
the very existence of an ‘unlimited’ power of constitutional reform makes an
extra-constitutional exercise of constituent power appear unnecessary and, at
the same time, the stringent requirements of the amendment procedure tend
to prevent important transformations to take place.
In other places, constituent power is an important part of mainstream
constitutional thought. In Latin America, for example, the theory of constit-
uent power has been a regular topic in legal–academic writings. The presence
of constituent power in this juridical tradition is probably related to the way
in which Latin American jurists, like their European counterparts, think
about constitutional law and its connections to the political system. For them,
constitutional law is part of the more general field of derecho politico (literally
translated, ‘political law’).115 Political law can be defined as the study of the
juridical order and its relationship with society and political activity, and
most political law treatises devote one or several sections to a discussion of the
concept of constituent power.116 This presence might also be a result of the
fact that liberal constitutionalism has not been as successful in Latin America
as in places like Canada or the United States. Most Latin American countries
have experienced several constitutional ruptures as a result of revolutions or
coups followed by various episodes of constitution-making. Perhaps the ever-
changing constitutional history of these countries has made the political foun-
dations of constitutional regimes, law as politics in its most crude manifestation,
easier to appreciate.
The presence of the theory of constituent power in the Latin American
constitutional tradition is so strong that it is not uncommon to find references
to it in judicial decisions.117 I will briefly consider below Opinion 138 of the
Colombian Supreme Court of Justice, rendered in 1990.118 Although certainly
not the most recent of the decisions that discuss and rely on the theory of
constituent power in important ways, this opinion marked the beginning of
an approach to constitutional change that has spread, in a radicalised form, to
different Latin American countries. Like the decision from the Venezuelan
Supreme Court of Justice (mentioned at the beginning of this chapter),
Opinion 138 validated the convocation of a special constitution-making body,
one not contemplated in the amendment rule of the established constitution.
This judicial opinion, as well as the convocation of the National Constituent
Assembly in 1990, took place in a volatile political context: an armed conflict
that involved the military, guerrillas, paramilitary groups and drug cartels,
and a strong popular mobilisation in favour of constitutional reform.
Since the late 1970s there had been several failed attempts to modify the
country’s constitutional framework, which was perceived by many as hostile
to the incorporation of new political movements that represented interests
different from those traditionally advanced by the Liberal and Conservative
parties.119 A traditional liberal constitution, the Colombian Constitution of
1886, placed the power of constitutional reform in the hands of Congress, and
excluded the possibility of convening an extraordinary assembly for the crea-
tion of a new fundamental law.120 Calls for the adoption of a new constitution
through a constituent assembly reached their climax when a student move-
ment was successful in its campaign for the informal introduction of a ‘seventh
ballot’ (séptima papeleta) in the March 1990 congressional elections, through
which voters could express their will to convene a Constituent Assembly for
the modification of the Constitution of 1886.
Although not legally binding, the expression in favour of the Constituent
Assembly was so strong that President Virgilio Barco issued a Decree ordering
that, during the presidential elections of May 1990, voters would be formally
asked whether they wished to convene a Constitutional Assembly (the
assembly was re-labelled ‘constitutional’ by government with the obvious
objective of suggesting that its powers could be limited by law) to “revise
the Political Constitution with the objective of strengthening participatory
democracy”.121 More than 88 per cent of those participating in the
election voted ‘yes’. Interestingly (particularly from a Schmittian perspec-
tive),122 it was the almost permanent state of exception present in Colombia
that facilitated the issuing of that Decree and allowed the new government
to establish the legal procedures that ended in the convocation of the
Assembly.123
In August 1990, the new President, Cesar Gaviria Trujillo, issued another
Decree under the authority given to him by the state of exception,124 expressing
that the Constitution of 1886 was no longer effective or adequate for dealing
with the Colombian reality, and that several guerrillas had expressed their
willingness to disarm if allowed to participate in a constitution-making
process. The Decree also stated that the convocation of a Constitutional
Assembly would allow different social movements, including those engaged
in illegal protests, to participate in the creation of a constitution that would
potentially recognise the rights and institutions they considered necessary for
the country.
Recognising that a great majority of voters had expressed in favour of the
assembly in the May 1990 elections, the Decree established the process for its
convocation: in December 1990, there would be a special election in which
voters would be given the opportunity to elect the members of the assembly
and approve the topics that the assembly could consider in its deliberations
(the Decree included a long list of specific topics, such as revising the internal
procedures of Congress and considering new human rights to be recognised by
the constitution). In this last respect, the Decree expressed that “The Assembly
may not consider themes different from the ones included in the list approved
by the people.”125
In a Sieyesean fashion, the Decree expressed that “The members of the
Assembly will represent the entire Nation and must vote consulting only
justice and the common good.”126 The Constitution adopted by the Assembly
would then be sent to the Supreme Court of Justice to determine if it was
consistent with the set of topics approved by the citizenry in the special elec-
tion. Also in a Sieyesean fashion, the new or reformed constitution would
come into effect without the need of popular ratification. The Supreme Court
of Justice was called to consider if President Gaviria’s Decree was consisted
with Article 121 of the Constitution of 1886 (the emergency provision of the
constitution).
While determining that the Decree was by and large constitutional (as
there was a clear connection between the declared state of exception and the
objectives of the Decree), the Court declared invalid those sections of the
Decree that sought to limit the power of the Assembly, affirming its ‘constit-
uent’ rather than ‘constitutional’ character. According to the Court, the
Assembly would represent that nation’s constituent power, which could not
be subject to any limits: “Being the Nation the bearer of the original constit-
uent power (constituyente primario) and having a sovereign character from which
the other public powers emerges,” the Court expressed, “neither it is subject
to any limits other than those imposed by itself, nor its acts can be revised by
the constituted powers.” 127
The Court defined constituent power as a “moral and political potency”,
possessing a “creative vigour” and capable of “setting the historical course of
a state” and of “opening closed channels of expression”.128 Citing one of its
own opinions from 1978, the Court stated that it was “the essence of the
original constituent power to attribute competences”, and therefore its own
competencies could not be limited.129 Accordingly, the Court declared invalid
all the sections of the Decree that attempted to limit the power and scope of
the Assembly’s decision-making power and that restricted “the full exercise of
its sovereignty”.
Interestingly, the Court expressed that because the general objective behind
the convocation of the assembly was to “strengthen participatory democracy”
(an objective that was ratified by voters in the May 1990 elections), the
Assembly could not legitimately abandon it. The Court also declared valid
those provisions that tended to guarantee the independence of the extraordi-
nary body, such as the one that prohibited government officials being members
of the assembly, which, according to the Court, would allow it to exercise its
functions with full autonomy. In contrast with the Sieyesean view, the Court
expressed that it was not appropriate to “accumulate in the same persons
or entities such different functions” as administrating the state or adopting
ordinary laws, and that of creating a new constitution.130
The assembly (now renamed Constituent Assembly) was eventually composed
not only of members of the traditional parties, but also included representa-
tives from various social movements and ex-guerrilla groups, and was convened
in 1991. The constitution it adopted has been widely celebrated, and it
included many of the proposals rejected by previous governments (such as the
establishment of a Constitutional Court), a generous catalogue of civil, social
and economic rights, as well as mechanisms for their protection.131 However,
and as we will see in Chapter 7, subsequent governments have attempted to
introduce to it a set of constitutional reforms that were not well received by
several groups. This allowed the Colombian Constitutional Court to use the
theory of constituent power in order to limit the power of constitutional
reform of ordinary government (an idea that was proposed by Schmitt in his
Constitutional Theory and that, as will be seen in Chapter 7, facilitates rather
than hinders the realisation of democracy at the level of the fundamental
laws). While the decision of the Colombian Supreme Court of Justice discussed
above illustrates the presence of constituent power in the Latin American
tradition, it only marks the beginning of what could become a truly demo-
cratic form of constitutionalism. But the full consideration of this idea will
have to wait until later chapters.
Concluding remarks
The theory of constituent power allows us to see some of the concepts and
arguments discussed in previous chapters in a new light. This is particularly
true with respect to the two dimensions of democracy. Looked at from the
perspective of constituent power, one can say that democracy at the level of
daily governance takes place in the juridical domain of the constituted powers.
There, legislators, judges and executive officials play a central role in admin-
istrating the state through the adoption, interpretation and application of the
ordinary laws that regulate the day-to-day lives of individuals. As constituted
powers, these officials and the institutions they represent operate under
the constitutional forms to which they owe their existence. Democracy at the
level of the fundamental laws, on the other hand, belongs to the political
domain of the constituent power. There, citizens exercise their sovereignty
and deliberate and decide about important constitutional changes without
being subject to any form of positive law. While rare and episodic, democracy
at the level of the fundamental laws represents the moment(s) in which
a constitutional regime can come closer to the exercise of the people’s
constituent power.
Constituent power also provides important insights with respect to the
ways in which democracy is negated by the traditional conception of constitu-
tionalism. A constitutional regime that operates according to that traditional
conception approaches constituent power as a threat to the regime’s aspiration
to permanency. If constituent power (as conceived by Sieyes and Schmitt) can
be exercised at any moment after a constitution is in effect, it can only be
consistent with a regime that remains permanently open to its own transfor-
mation or abolition. This, of course, raises many dangers that constitutional-
ists would be quick to point out: unstable constitutional orders, permanent
revolutions, the abolition of fundamental rights and the elimination of any
form of democratic governance. However, these dangers are heavily amelio-
rated by the fact that constituent power, as we will see in the next chapter, is
par excellence a democratic concept that is inexorably accompanied by a deter-
minate political objective: the creation of a constitution. In that sense, as the
next chapter will argue, in virtue of its connections to the basic principles of
democracy, the theory of constituent power can help us judge the democratic
legitimacy of a constitution.
Notes
1 Reference re Secession of Quebec, [1998] 2 SCR 217.
2 Ibid., para 76. It is interesting to note here that the political representatives of
the province of Quebec did not ‘consent’ to the 1982 constitutional changes
(which among other things created a charter of rights and a new amending
procedure).
3 Ibid., paras 77–78.
4 Fallo Núm. 17 of the Supreme Court of Justice of Venezuela, 19 January 1999.
As the reader will note, this reasoning bears a striking similarity with several
aspects of Akhil Reed Amar’s theory of constitutional change. Akhil Reed
Amar, ‘The Consent of the Governed: Constitutional Amendment Outside
Article V’, Columbia Law Review, 1994, vol 94, p 457.
5 See for example Richard S. Kay, ‘Constituent Authority’, American Journal of
Comparative Law, 2011, vol 59, p 715; John Rawls, Political Liberalism, New
York: Columbia University Press, 2005, p 231; Julie Mostov, Power, Process, and
Popular Sovereignty, Philadelphia: Temple University Press, 1992.
6 For an early discussion of the similarities between Lawson and Locke, see
A.H. Maclean, ‘George Lawson and John Locke’, Cambridge Historical Journal,
1947, vol 9, p 69.
7 Andreas Kalyvas, ‘Popular Sovereignty, Democracy, and the Constituent Power’,
Constellations, 2005, vol 12(2), p 223.
8 Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl
Schmitt, and Hannah Arendt, Cambridge: Cambridge University Press, 2008, p 1.
9 George Lawson, Politica Sacra et Civilis, Cambridge: Cambridge University
Press, 1992.
10 Julian H. Franklin, John Locke and the Theory of Sovereignty: Mixed Monarchy and
the Right of Resistance in the Political Thought of the English Revolution, Cambridge:
11 Lawson, Politica Sacra, p 22.
12 Lawson appears to have taken the distinction between personal and real majesty
from Christopher Besold, De magistrate in genere (Strasburg, 1625). Nevertheless,
Julian Franklin traces the origin of this distinction to Hermann Kirchner,
Respublica (1608). Julian Franklin, ‘Sovereignty and the Mixed Constitution:
Bodin and his Critics’, in J.H. Burns (ed), The Cambridge history of Political
Thought, 1450–1700, Cambridge: Cambridge University Press, 1991, p 316.
14 Ibid.
15 Ibid.
16 Ibid. As the reader may note, Lawson’s distinction between personal and real
majesty is similar to that between democratic governance and democracy at the
level of the fundamental laws (discussed in Chapter 3).
17 Ibid.
18 Ibid. (Emphasis added.)
19 Ibid., p 52.
20 Ibid., p 50. The distinction here between ‘multitude’ and ‘community’ is
strongly reminiscent of Hobbes.
21 Ibid., p 69.
22 Ibid., p 68. See also Franklin, John Locke and the Theory of Sovereignty, p 72.
24 Ibid.
25 Ibid., p 48.
26 Ibid., p 107
27 Ibid. This idea comes close to the reasoning behind the doctrine of unconstitu-
tional constitutional amendments, which will be discussed in Chapter 7.
28 Ibid.
29 Ibid., p 47.
30 John Locke, Two Treatises of Government, New York: Hafner Publishing
Company, 195, p 232, para 220.
31 Ibid., p 196, para 149.
32 Ibid., p 187, para 133.
33 Ibid., p 184, para 123.
34 Ibid., p 233, para 222. Unlike Hobbes, who thought that any form of order,
however oppressive, was superior to the state of nature, Locke considered that it
was better to live in the state of nature than under a form of government that
transgressed the conditions of the social contract. Ibid., p 127, paras 114, 191.
35 Ibid., p 235, para 225.
36 Franklin, John Locke and the Theory of Sovereignty, p 95.
37 Locke, Two Treatises of Government, p 233, para 221.
38 Ibid., p 193, para 141.
39 Ibid., p 235, paras 225, 233, 222.
40 Ibid., p 197, para 155.
41 Declaration of Independence (1776).
42 Ibid.
43 Locke, Two Treatises of Government, p 197, para 149. As Carl Friedrich has noted:
“. . . Locke’s juridical statement contains a kernel of two important generalisa-
tions: (1) there tends to exist a residuary and unorganised power of resistance in
the community which seeks to restrain the government, and (2) this constituent
power can only come to play when government fails to function.” Carl Friedrich,
Constitutional Government and Democracy: Theory and Practice in Europe and America,
New York: Blaisdell Publishing Company, 1950, p 130.
44 Locke, Two Treatises of Government, p 246, para 243.
45 Ibid., p 245, para 240. This passage might be taken to suggest that, after all, for
Locke it is the people who decide whether a certain situation merits the dissolution
of government, and therefore justifies the exercise of the power to create a new con-
stitutional order. A similar view can be identified in Lawson, who wrote that “[a]s
the community hath the power of constitution, so it hath of dissolution, when
there shall be a just and necessary cause”. Lawson, Politica Sacra, p 47. Such an
interpretation would give force to the idea that Locke and Lawson were advancing
a theory of constituent power and not merely a defence of the right of resistance.
However, the very idea of the need to justify the exercise to create a new govern-
ment with reference to certain abuses on the part of the legislative and executive
powers, certainly signals a fundamental distinction between Locke’s and Lawson’s
approaches and the theory of constituent power advanced by Sieyes and Schmitt.
46 Franklin, John Locke and the Theory of Sovereignty, p 123.
47 Locke, Two Treatises of Government, pp 235–240, paras 224–233.
48 Ibid., p 235, para 225.
49 Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England
and America, New York: Norton, 1988, p 43. See also Mostov, Power, Process, and
Popular Sovereignty, p 60.
50 Emmanuel Joseph Sieyes, What is the Third Estate?, New York: Praeger, 1963. In
his Memoirs, Marquis de La Fayette placed the origins of the concept of constitu-
ent power in the American constitutional tradition, and rejected the idea that
Sieyes was the creator of the distinction between constituent and constituted
powers. For a discussion, see Raymond Carré de Malberg, Teoría General del
Estado, Fondo de Cultura Económica, 1948. In fact, the phrase ‘constituent
power’ was used by Thomas Young in a letter to the citizens of Vermont, where
he wrote: “For my own part, I esteem the people at large the true proprietors of
governmental power. They are the supreme constituent power and, of course,
their immediate representatives are the supreme delegate power; and as soon as
the delegate power gets too far out of the hands of the constituent power, a
tyranny is in some degree established.” ‘Dr. Young’s Letter to the Inhabitants of
Vermont, a Free and Independent State, Bounding on the River Connecticut and
Lake Champlain’ (Philadelphia, April 1977). It is not entirely clear, however, if
Young is using the term ‘constituent power’ as an unlimited power to create con-
stitutions, or using it to refer to the general idea that representatives should act
according to the will of those they represent. There are also some uses of the term
‘constituent power’ in early eighteenth-century England. See for example, ‘On
the Independence of Parliament’, in The London Magazine, 1734, vol 3, p 462.
51 Sieyes, What is the Third Estate?, p 58.
52 Ibid., p 122.
53 Ibid., pp 123–124.
54 Ibid., p 124.
55 Ibid., p 130.
56 Ibid.
57 Ibid., p 126.
58 Ibid., p 128.
59 Ibid.
60 Ibid., p 134.
61 Ibid., p 126.
62 Ibid., p 130.
63 Ibid., p 131.
64 Ibid.
65 Ibid.
66 Ibid., pp 131–132.
67 Ibid., p 132.
68 Malberg, Teoría General del Estado, p 1165.
69 Quoted in Lucien Jaume, ‘Constituent Power in France: The Revolution and
its Consequences’, in Martin Loughlin and Neil Walker (eds), The Paradox
of Constitutionalism: Constituent Power and Constitutional Form, Oxford: Oxford
70 That is to say, Sieyes thought that democracy and representation were incompatibl:
where representation was necessary, like in France, there could not be a democracy:
“ ‘No aristrocracy’ ought to become a kind of rallying-cry for all the friends of the
nation and good order. The aristocrats will think that they can resort by crying:
‘No democracy’. But we will repeat ‘No democracy’ with them and against them. These
gentlemen do not realize that representatives are not democrats; that since real
democracy is impossible amongst such a large population, it is foolish to presume
it or to appear to fear it . . .” Sieyes, What is the Third Estate?, p 196, n gg.
71 Carl Schmitt, Constitutional Theory, Durham: Duke University Press, 2008.
72 Ibid., p 125.
73 Ibid., pp 76–77.
74 Ibid., p 151.
75 In the English translation of Constitutional Theory, ‘constituent power’ (verfas-
sungsgebenden Gewalt) was translated as ‘constitution-making power’. For the sake
of consistency, I will replace the phrase ‘constitution-making power’ with ‘con-
stituent power’ (always in square brackets) when quoting directly from the
English translation.
76 Ibid., p 125.
77 Ibid.
78 William E. Scheuerman, ‘Revolutions and Constitutions’, in David Dyzenhaus
(ed), Law as Politics: Carl Schmitt’s Critique of Liberalism, Durham: Duke Univer-
sity Press, 1998, p 257.
79 Schmitt, Constitutional Theory, pp 112, 76.
80 Ibid., pp 126–127.
81 Ibid., p 132. This does not mean that Schmitt welcomed frequent exercises
of constituent power. Like Sieyes, he considered stability and order of funda-
mental importance. And, in fact, part of his critique of liberalism was due to its
alleged failure to guarantee stability by failing to make the ‘crucial’ distinction
between friend and enemy. See Carl Schmitt, The Concept of the Political, Chicago:
University of Chicago Press, 1996. For an illuminating discussion, see David
Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller
in Weimar, Oxford: Oxford University Press, 2003, p 97.
82 Schmitt, Constitutional Theory, pp 132, 138.
83 Ibid., pp 132, 141. I will come back to this point in Chapter 9.
84 Ibid.
85 Ibid., p 110.
86 Ibid., p 128.
87 It is in his Constitutional Theory where Schmitt, shifting away from the monar-
chical view he seemed to maintain in his Political Theology, designated the people
as a legitimate subject of constituent power. See Carl Schmitt, Political Theology:
Four Chapters on the Concept of Sovereignty, Cambridge: MIT Press, 1985.
89 Ibid., p 128.
90 Andrew Arato, ‘Forms of Constitution Making and Theories of Democracy’,
Cardozo Law Review, 1995, vol 17, p 203.
91 Andreas Kalyvas, Democracy and the Politics of the Extraordinary, pp 116–117,
155.
93 Ulrich K. Preuss, ‘Constitutional Power Making for the New Polity: Some
Deliberations on the Relations Between Constituent Power and the Constitu-
tion’, Cardozo Law Review, 1993, vol 14, p 652.
94 Examples of this include South Africa, in which a Constitutional Court
reviewed the decisions of the constitution-making body (see In re Certification of
the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) and In
re Certification of the Amendment text of the Constitution of the Republic of South
Africa, 1996 1997 (2) SA 97 (CC)), and Puerto Rico, in which the United
States conditioned the validity of the Constitution of 1952 to the inclusion of
certain provisions (and the exclusion of others). See José Trías Monge, Historia
Constitucional de Puerto Rico, Volumen III, Editorial de la Universidad de Puerto
Rico, San Juan, 1982.
95 The cases of Iraq and Afghanistan are instructive in this respect. See Andrew
Arato Constitution Making Under Occupation: The Politics of Imposed Revolution in
Iraq, New York: Columbia University Press, 2009 and Noah Feldman
‘Imposed Constitutionalism’, Connecticut Law Review, 2004, vol 27, p 857.
96 The paradigmatic example here would be the United States, but a more recent
example is provided by Canada, which in the 1980s engaged in a process of
constitutional change driven from the top down and in which the participation of
citizens was limited to occasional consultation in committees that lacked decision-
making power. See Peter H. Russell, Constitutional Odyssey: Can Canadians Become a
Sovereign People?, Toronto: Toronto University Press, 2004.
97 For recent examples see the essays in The Paradox of Constitutionalism.
98 Alexis de Tocqueville, Democracy in America, New York: New American
Library, 1956, p 74.
Macmillan, 1959.
100 Ibid., pp 36–37.
101 Ibid., p 37. The idea that Parliament has both ‘constituent’ and ‘legislative’
powers is present in the work of some contemporary defenders of the doctrine
of parliamentary sovereignty. For example, Jeffrey Goldsworthy writes: “Parlia-
ment can be said to have constituent power to change every part of the unwrit-
ten constitution except, arguably, that which grants its own law-making
authority.” Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates,
Cambridge: Cambridge University Press, 2010, p 111.
102 See for example E.W. Thomas, ‘The Relationship of Parliament and the
Courts: A Tentative Thought or Two for the New Millennium’, Victoria
University of Wellington Law Review, 2000, vol 31, pp 21–23; R.A. Edwards,
‘Bonham’s Case: The Ghost that Runs the Constitutional Machine’, Denning
Law Journal, 1996, vol 11, p 74.
103 Edmund S. Morgan, Inventing the People, p. 50.
104 Dicey, Introduction to the Study of the Law and the Constitution, p 38.
105 A.V. Dicey, ‘The Referendum’, National Review, 1894, vol 23, pp 70, 76. The
idea of the electorate as the true sovereign also appears in the Introduction to
the 8th edition of Introduction to the Study of the Law and the Constitution, written
30 years after the first edition was first published. Dicey Introduction to the Study
of the Law and the Constitution, p lxvii.
106 The relevant part of the opening lines of What is the Third Estate? reads as follows:
“What is the Third Estate? Everything. What has it been until now in the politi-
cal order? Nothing”. Sieyes, What is the Third Estate?, p 51. For Sieyes, the Third
Estate was to be understood as the true representative of the Nation: at 58.
107 Dicey, ‘The Referendum’, p 69.
108 Ibid.
109 For an analysis of the development of this aspect of Dicey’s thought, see Rivka
Weill, ‘Dicey Was Not Diceyan’, Cambridge Law Journal, 2003, vol 62, p 480.
110 On this point, see Vernon Bogdanor, The New British Constitution, Oxford: Hart
Publishing, 2009.
111 Dietrich Conrad, ‘Limitation of Amendment Procedures and the Constituent
Power’, Indian Year Book of International Affairs, 1966–1967, vols 15–16,
p 405.
112 Martin Loughlin, ‘Constituent Power Subverted: From English Constitutional
Argument to British Constitutional Practice’, in The Paradox of Constitutional-
ism, p 27. Martin Loughlin argues that, although absent from contemporary
British constitutional thought, constituent power emerged during discussions
during the constitutional conflicts of the seventeenth century. Loughlin,
however, seems to identify constituent power with Lawson’s and Locke’s
theories of resistance (discussed in the first section of this chapter). In the
twentieth century, Britain did not show much sympathy for ‘constituent
assemblies’ either. See Moore v Attorney-General for the Irish Free State [1935]
AC 484.
113 For a discussion, see Jason Frank, Constituent Moments: Enacting the People in
Postrevolutionary America, Durham: Duke University Press, 2010; Christian G.
Fritz, American Sovereigns: The People and America’s Constitutional Tradition Before
the Civil War, Cambridge: Cambridge University Press, 2008.
114 See Kalyvas, ‘Popular Sovereignty, Democracy, and the Constituent Power’,
p 414.
115 Rodrigo Borja, Derecho Político y Constitutional, México: Fondo de Cultura
Económica, 1991, p 303.
116 See for example Patricio Colombo Murúa, Curso de Derecho Político, Buenos
Aires: Abeledo-Perrot, 2000; Rodrigo Borja, Derecho Político y Constitutional;
Carlos Fayt, Derecho Político, Buenos Aires: Ediciones Ghersi, 1982; Germán
José Bidart Campos, Derecho Político, Buenos Aires: Aguilar, 1967; Luis Sanchez
Agesta, Lecciones de Derecho Político, Granada, Librería Prieto, 1959. René
Boggio, Manual Elemental de Derecho Político, Lima: Editorial Biblioteca de
Derecho y Ciencias Sociales, 1948.
117 Chapter 7 will discuss some of these decisions. For a more detailed discussion,
see Joel I. Colón-Ríos, ‘Carl Schmitt and Constituent Power in Latin American
Courts’, Constellations, 2011, vol 18(3).
118 Opinion No. 138, 9 November 1990.
119 Renata Segura and Ana María Bejarano, ‘!Ni una Asamblea Más Sin Nosotros!
Exclusion, Inclusion, and the Politics of Constitution-Making in the Andes’,
Constellations, 2004, vol 11, p 220.
120 Constitución Política de Colombia de 1886, Article 209. As noted above, the
decision of the Venezuelan Supreme Court of Justice, briefly discussed in the
introduction, dealt with a very similar issue. Interestingly, the Supreme Court
of Pennsylvania confronted a similar set of facts in 1874. See Wood’s Appeal, 75
Pa 59 (1874).
121 Decree 927 of 1990, 3 May. Quoting a 1987 decision of the Colombian
Supreme Court of Justice, the Decree stated that the “Constituent Nation” has
full autonomy to make any decisions “respecting its fundamental juridical
structure”.
122 For a discussion of the relationship between states of exception and constituent
power, see Kalyvas, Democracy and the Politics of the Extraordinary, p 119. For
Kalyvas: “The exception, besides designating the juridical declaration of an
emergency situation, is the condition of possibility of sovereignty and extraor-
dinary politics, not its essence. It is only in the moment of an organic crisis, to
use Gramsci’s term, where the closure of the social explodes to bring about a
displacement among its different structural levels, including the legal system,
that there is the possibility for an imminent radical change in the political
organisation of society. I take Schmitt’s reference to the exception as describing
also this moment of crisis, this openness and contingency that provides the
available space for the reactivation of the constituent power, which up to this
moment remained in a dormant and subterranean form.” Ibid.
123 Decree No. 1038 of 1984 declared a state of exception in the entire national
territory. In fact, by 1990, the country had lived 37 of the previous 42 years
under a declared state of exception. See Eduardo Cifuentes Muñoz, ‘Los Estados
de Excepción Constitucional en Colombia’, Ius et Praxis, 2002, vol 8(1), p 117.
124 Decree No. 1926 of 24 August 1990.
125 Ibid. The Decree also established the electoral system to be used: the assembly
would be composed of 70 members elected by universal suffrage in a single
national district, and those currently occupying a governmental position could
not be candidates (and those elected to the assembly could not run for office in
the 1992 or 1994 elections). Moreover, two seats would be reserved for demo-
bilised guerrillas (a number that could be increased if other groups expressed
their willingness to disarm and participate in the process).
126 Ibid.
127 Opinion 138.
128 Ibid.
129 Ibid.
130 Ibid.
131 See also Gonzalo Ramírez Cleves, Límites a la Reforma Constitucional en Colombia:
El Concepto de Constitución como Fundamento de la Restricción, Bogotá: Universidad
Externado de Colombia, 2005, p 442. In fact, the Colombian Constitution
of 1991 has become a fundamental tool for the left, giving place to the
curious situation that the left tends to defend the established constitutional
regime, and the conservatives to challenge it from government. See Cesar
Rodríguez Garavito, ‘La Nueva Izquierda Colombiana: Orígenes, Característi-
cas y Perspectivas’, in Cesar Rodríguez Garavito, Patrick Barret and Daniel
Chavez (eds), La Nueva Izquierda en América Latina, Bogotá: Grupo Editorial
Norma, 2005, p 196.
6 The idea of democratic legitimacy
Constituent power, it has been suggested in previous chapters, has an impor-

tant connection with the democratic ideal. In its modern and contemporary
formulations, constituent power is attributed to the nation, the people or
the community; in short, to all those who will become subject to the
future constitutional regime. Constituent power points toward a democratic
constitution-making power, and its popular and collective character makes it
incompatible with given or imposed constitutions. This is why, paraphrasing
Antonio Negri, to talk about democracy at the level of the fundamental laws
– about popular sovereignty in the context of constitutional change – is to
talk about constituent power.1
Not surprisingly, constituent power has traditionally been associated
by constitutionalists with instability and the risk of political revolution.
A multitude always getting what it wants, continually making and un-
making laws, represents the antithesis of good government; the rule of
people’s ever-changing wishes against the empire of law and reason. As we
saw in the previous chapter, since constituent power is about creating
new constitutions without being subject to any form of positive law, constitu-
tionalists’ fears are exponentially heightened. Nevertheless, as a result of
its connections to the basic principles of democracy, constituent power
can provide us with a way of assessing the democratic legitimacy of a
constitutional regime.
The chapter is organised in the following way. It begins by exploring the
idea of legitimacy and distinguishing it from the related concepts of authority
and justification. The conception of legitimacy that will emerge from that
analysis will be highly procedural, but will not be able to assist us in identi-
fying the specific procedures that must be present for the relevant institution
(in our case a constitutional regime) to be considered legitimate. The chapter
then proposes to fill that normative vacuum with the theory of constituent
power. A conception of legitimacy centred on the theory of constituent power,
however, might be seen as inevitably accompanied by an uncontrollable
constitution-maker that may be tempted to abolish democracy or to perpet-
uate itself. In response to these fears, this chapter will argue that in virtue
of its connections to the basic principles of democracy and its finality of
The idea of democratic legitimacy 103
establishing a new constitution, the exercise of constituent power should not
be seen as a disaster waiting to happen.
Far from being an uncontrolled power to destroy and create constitutions at
will, constituent power carries with it important limitations: it must be exer-
cised through a procedure that comes as close as possible to the idea of a
people giving itself a constitution, and it must end in the adoption of a consti-
tution that guarantees the conditions for its future exercise (conditions
that promote respect for those rights and institutions that are necessary
for an exercise of constituent power to take place). Finally, the chapter
discusses the specific demands imposed by democratic legitimacy on a constitu-
tional regime. It will be maintained that a democratically legitimate consti-
tutional regime, one that citizens could genuinely see as theirs, should have
been created through an open and participatory process, and must be subject
to democratic re-constitution. That is, it must provide an opening, a means of
egress, for constituent power to manifest from time to time. Although a
constitutional regime that meets both of these requirements will certainly
have a stronger claim to democratic legitimacy than one that only meets the
second one, it will be argued that it is in the possibility to future exercises of
constituent power where the basic condition of democratic legitimacy lies.
The idea of legitimacy

It is rarely clear what is meant when someone says that the exercise of political
power by some human beings over others is legitimate. In fact, as David
Beetham has argued, the meaning of the term legitimacy usually depends on the
training of the academic who is speaking or writing: whether she is a lawyer, a
social scientist or a philosopher will have an important impact on her approach
to the question of what constitutes legitimate political power.2 For instance,
lawyers are traditionally concerned with how legal rules are posited, revised
and enforced. For them, a legitimate political power is one acquired and exer-
cised according to established law; in their view, says Beetham, legitimacy is
equivalent to legal validity.3 This kind of approach is reminiscent of (though
not identical to) Hans Kelsen’s pure theory of law. According to the pure
theory, the question of legitimacy is only relevant if understood in terms of
legal validity.4 A legitimate constitution is thus one that has been adopted in
the manner prescribed by a superior norm (e.g., the amendment rule of the
previously valid constitution). Questions such as: ‘What is the content of the
laws?’ ‘Who posits them and how?’, which are fundamental to other concep-
tions of legitimacy, simply do not figure under the pure theory.5
Social scientists have a very different approach to legitimacy. The social
scientist is not normally interested in questions of legal validity, but in
looking at the extent to which those who exercise political power can count on
the obedience of those subordinate to them.6 Social scientists are not concerned
with the idea of legitimacy in universal or normative terms. Their objective is
to show how legitimacy affects power relations in particular societies. By
trying to stand back from their own values and beliefs (e.g., from their idea of
what would amount to a ‘truly’ legitimate political power according to some
set of normative criteria), they aim to discover what is actually believed in the
society they are studying. Beetham sees this approach exemplified in Max
Weber’s conception of legitimacy as the belief in legitimacy of the relevant
social agents.7 In this vision, power relations are legitimate when “those
involved in them, subordinate as well as dominant, believe them to be so”.8
Such an approach would consider a constitution legitimate if both officials
and citizens believe it to be legitimate (regardless of the causes of that belief).9
For the social scientist, to say that a determinate political power is legitimate
is to make a report, to describe the beliefs of a particular group of human
beings. The question of legitimacy does not involve a juridical assessment of
how a regime came into being, but an empirical judgment.10
Beetham distinguishes the approaches of the lawyer and of the social scien-
tist from that of the philosopher.11 Moral and political philosophers are usually
not interested in legal validity or in the actual beliefs of those involved in a
relation of power. They are concerned with the question of how political
power ought to be arranged.12 For them, political power is legitimate when its
rules can be justified according to normative principles with which any
rational and unbiased person would agree to. What is legitimate to the philos-
opher “is what is morally justifiable or rightful; legitimacy entails the moral
justifiability of power relations”.13 This approach is exemplified in the political
philosophy of John Rawls, who attempts to show how the idea of justice can
guide the establishment of a just constitution.14 Consistent with Beetham’s
depiction of the philosophical approach, Rawls expresses his conception of
legitimacy in terms of what is justifiable to citizens: “As we have said, on
matters of constitutional essentials and basic justice, the basic structure and
its public policies are to be justifiable to all citizens, as the principle of polit-
ical legitimacy requires.”15 In this sense, the project of those engaged in the
philosophical approach is that of elucidating the general principles according
to which political power may be justified.16
These three approaches to the question of legitimacy are different from the
one that I will defend in this chapter.17 This chapter is about democratic legiti-
macy, not about what we may call ‘legitimacy as such’. These accounts are
useful, however, because they throw light on the ways in which the ‘legiti-
macy’ aspect of ‘democratic legitimacy’ has been treated from different
academic perspectives. But in order to fully explain the way in which the
concept of legitimacy is used in this book, some further clarifications are
needed. Accordingly, in what follows I distinguish the idea of legitimacy
from two other concepts that, although related to legitimacy in important
ways, are sometimes used interchangeably. The first of these concepts is that
of justification. There is, of course, no single way of distinguishing between
justification and legitimacy, and it is not necessary to undertake a comparative
review of different understandings of these concepts.18 Instead, I propose to
examine one influential account of this distinction, and build from there. The
view that I have in mind is that of A.J. Simmons, and I will briefly outline its
main points as a way of introducing the discussion.19
Simmons is particularly interested in the legitimacy and justification of the
state. Under his view, legitimacy and justification provide different dimen-
sions of institutional evaluation and involve different kinds of arguments: to
legitimise a state, one must show that it has a special relationship with its
citizens that gives it a right to rule over them; to justify the state, one must
show that some realisable type of state is preferable to any (feasible) non-state
alternative.20 If the distinction between legitimacy and justification collapses,
Simmons argues, political philosophers would be robbed of one important
mode of institutional evaluation. Simmons finds the model for the kind of
distinction that he is trying to advance in the work of John Locke.21
In Locke’s political philosophy, political power is legitimate only if subjects
have freely consented to it and if it is continuously exercised within the terms
of those subjects’ consent. The legitimacy of particular states lies in the actual
history of that state’s relationship with its subjects: if the subjects freely
consented to the exercise of state power, their state is a legitimate one; if they
did not, then they live in an illegitimate state.22 Nevertheless, when Locke
advances his argument in favour of the preferability of the limited state (the
state ruled by limited government) over life in the state on nature, he does not
rely on consent theory (but on the idea that leaving the state of nature and
creating a state would allow for a superior protection of individuals’ lives,
liberties and estates).23 In other words, the fact that it is good to live in a state
might be enough reason to support it, but does not create a duty to obey its
dicta.
What Simmons wants to take from Locke is that the considerations that
serve to justify the state (which make it preferable to life in the state of nature)
cannot by themselves legitimise it.24 In this way, Locke captures the distinc-
tion between legitimation and justification: “[T]he Lockean, I take it, wants
to say the following: the general quality or virtues of a state (i.e., those features
of it appealed to in its justification) are one thing; the nature of its rights over
any particular subject (i.e., that in which its legitimacy with respect to that
subject consists) are quite another thing.”25 That the limited state is justified
does not say anything about its legitimacy. Justification is about demon-
strating that the state is, on balance, a good thing; legitimation about showing
that the state has the kind of relationship with its citizens that gives it the
right to require their obedience. Simmons contrasts this approach with one
that finds in the justification of the state the very conditions of its legitimacy.
He identifies this view in Immanuel Kant and his followers. Kantians use the
same kinds of arguments in attempting to justify the state as in demonstrating
its legitimacy. Accordingly, they think of institutional evaluation in terms of
what ought to be chosen by people and not in terms of their actual choices.26
Under their approach, the actual historical relation between the state and its
citizens is irrelevant, and a state that can be rationally justified enjoys political
legitimacy.27
In distinguishing between legitimacy and justification, Simmons associates
the idea of legitimacy with the ways in which the state arises. In his view,
citizens have to do something before the juridical apparatus that governs them
can be legitimated. Because he is committed to political voluntarism, for
Simmons this ‘something’ must refer to the actual consent of individuals (a
condition that Simmons, the philosophical anarchist, maintains is not met by
any modern state).28 Although for reasons that will soon become clear, I do
not entirely subscribe to Simmons’ conception of legitimacy, I believe that it
has certain advantages over the Kantian approach. That approach (as the one
identified earlier as the ‘philosophical approach’) treats legitimacy and justifi-
cation as being the same things. Nevertheless, while Simmons’ conception
gives us valuable insights into the distinction between justification and legit-
imacy, it does so at the price of identifying legitimacy with the idea of
authority.29 For Simmons, a state’s legitimacy gives it the exclusive right to
impose duties on subjects through legally binding directives and to coerce
those who refuse to comply with them.30 This right to rule and the correlative
duty to obey is what political philosophers have traditionally referred to by
the term ‘authority’.31 Authority and legitimacy, in my view, should be
understood as different (although closely related) concepts.32
That is to say, from the idea that a juridical order is legitimate, it does not
necessarily follow that citizens have an obligation to obey the law. It is true
that there might be conceptions of authority that say: every legitimate state
has a right to rule and to be obeyed.33 And it is also true that Simmons’ looks
like one of those conceptions. But those are conceptions of authority that make
a state’s authority dependent on its legitimacy, not conceptions of legitimacy.
It is not surprising that authority is usually conceived of as involving legiti-
macy: the argument that an illegitimate power could have the right to be
obeyed is unpopular for good reasons. Nevertheless, from this does not follow
that those subject to a legitimate power have a moral duty to obey it; that is a
separate idea.34 In that respect, it may be said that authority entails legiti-
macy, but not the other way around.35 Legitimacy, as Simmons maintains, is
about whether the way in which the state arose is considered the correct one
according to some external criteria. However, whether or not those subjects
are obliged to obey the laws that emanate from that political power is a
different matter; it is a matter of the lawgiver’s authority (which might in
turn depend on other considerations).
In this section I have distinguished between the concepts of justification,
authority, and legitimacy, and maintained that these three concepts, when
applied to the exercise of political power, should be conceived in the following
way: (a) Justification: to say that a state is justified is to say something positive
about it, to suggest that it is better to have that type of state than to live in a
non-state situation; (b) Authority: to say that a state enjoys authority is to say
that it possesses the right to rule and to be obeyed by those within the scope
of its power; (c) Legitimacy: to say that a state is legitimate is to say something
about the ways it arose, about its pedigree. My principal objective has been to
make clear that when I talk about legitimacy, I am neither making any claims
about the advantages of having a state nor attempting to demonstrate
that people have a moral obligation to obey the state’s directives. Legitimacy
does not point toward the moral qualities of the institutions that are being
assessed (in my analysis, constitutional regimes) or to their right to rule:
it points to the way in which those institutions were created, and (as I will
argue shortly), when combined with democracy, to the ways in which they
can be altered.
Towards a conception of democratic legitimacy

In the context of democratic legitimacy, which is the modality of legitimacy
that interests me here, the distinction between legitimacy and authority is
even more important.36 Notice that in Simmons’ approach, the link between
the concepts of legitimacy and authority is a result of his strategy of connecting
legitimacy with the idea of consent. Consent theory is about trying to explain
the authority of the state and its basic idea is that those who wield political
power over other human beings have the right to be obeyed only if the latter
have freely consented to their authority.37 Democratic theory, in contrast,
does not provide (and does not attempt to provide) an explanation of the
state’s authority. In fact, democracy does not even involve the idea that citi-
zens have a moral obligation to obey the law. What democracy requires is the
equal participation of citizens in the positing of the laws and institutions that
govern them (not merely their consent to the establishment of a political
community).38 By virtue of that participation, citizens would have good
reasons to take compliance with laws seriously as they resulted from proce-
dures that expressed a commitment to their political equality.39 But if these
laws (even if they were the result of a democratic process) involve serious
violations of democratic principles (e.g., disenfranchising a segment of the
population or establishing a dictatorship through popular vote), those that
disagree with them would have a good reason to consider disobedience.40
But the idea of legitimacy that I subscribe to is similar to that advanced by
Simmons in the sense that it partly looks for the legitimacy of a constitutional
regime in the way that it arose, or, as he puts it, in the kind of historical rela-
tionship that it has with its citizens. It is also ‘procedural’ in a similar way to
Jeremy Waldron’s approach to the legitimacy of political decisions: to ask
whether a decision is legitimate is to ask whether it was taken according to
the right procedures.41 As I will argue later, this does not mean that substance
is irrelevant for the question of legitimacy: if the conditions that allow for the
continuing legitimacy of a constitutional regime are abolished, its claims to
legitimacy are immediately put into question, regardless of the ways in which
such abolition took place. Nevertheless, my conception of legitimacy differs
from each of the three approaches considered in the previous section: it does
not provide enough tools to adequately differentiate the legitimate from the
illegitimate.
Each of the approaches considered in the first section provides (at least in
theory) a straightforward test for assessing the legitimacy of political power.
According to the legal approach, political power is legitimate if it is acquired
and exercised according to established law (no matter the content of that law).
Here, the test of legitimacy requires an exercise in juristic interpretation: if
power was acquired and exercised legally, it is legitimate (valid). The social
science approach demands that those involved in power relations believe them
to be legitimate. Here, the test of legitimacy requires us to engage in an exer-
cise in sociology: if the relevant group of human beings believes in the legiti-
macy of their political system, then the system is legitimate (believed to be
legitimate). Lastly, the philosophical approach maintains that political power
is legitimate where its basic structure would be favoured by every rational and
unbiased person. Here, the test of legitimacy requires an exercise in reason: if
a political structure can be rationally justified, then it is legitimate (justifiable).
As noted above, the conception of legitimacy presented here associates the
legitimacy of laws and institutions with the ways through which they come
into existence (and, as we will see later, with the ways they can be changed)
but, unlike the previous approaches it does not tell us which ‘ways’ are the
right ones.
That is to say, it does not tell us what processes, what type of ‘historical
relations’, are the preferred ones. It provides us neither with a ‘test’ of legiti-
macy nor with a conception of legitimacy that, like Simmons’, comes accom-
panied by a theory about what must happen for the relevant institution to be
legitimate (in Simmons’ approach that role is played by consent theory). In
that respect, it is a conception of legitimacy that needs to be supplemented
with some external criteria: it has a void that must be filled with a theory that
can tell us how to differentiate between the right and the wrong ways of
constitution-making. That void can initially be filled with democracy; that is
to say, to talk about ‘democratic legitimacy’ rather than about ‘legitimacy’ as
such.42 The idea of democratic legitimacy can take us a long way to determining
what kind of procedures are the right ones. At the very least, it suggests that
for a constitutional regime to be considered legitimate from a democratic
perspective, its constitution must be created through democratic procedures:
procedures that are consistent with the principles of popular participation and
democratic openness (discussed in Chapter 4).
Under this view, a constitutional regime which has been created through a
process in which ordinary citizens are free to propose, deliberate and decide
about the content of the constitution is certainly more likely to be considered
democratically legitimate than a constitutional regime that has been imple-
mented by a foreign power or a military elite. However, the manner in which
a constitutional regime arises – its democratic pedigree – cannot be enough to
satisfy the demands imposed by the democratic ideal. Democratic legitimacy,
unlike a conception of legitimacy based on consent theory, cannot merely look
to the past of the constitutional regime (i.e., to the historical relation it has
with the citizens who live under it), but it must also look toward its potential
future. A participatory and open constitution-making episode is, in that
sense, only part of a democratically legitimate constitutional regime: the
constitution must also remain permanently open to fundamental constitu-
tional change; that is, to the future exercise of constituent power.
In fact, I believe that in virtue of its connections to the democratic ideal
(and, as a result, to the principles of democratic openness and popular partici-
pation), constituent power can help us judge the democratic legitimacy of a
constitutional regime. First, as argued in Chapter 5, constituent power is not
about a one-time constitution-making event: the people, as constituent
subject, may engage in important constitutional transformations whenever
they consider it necessary. Second, constituent power requires that those
transformations can be understood as having been made by the people, and
that means that they must take place through highly participatory proce-
dures. When assessed from the perspective of constituent power, the demo-
cratic legitimacy of a constitutional regime would thus depend on: (a) whether
the constitution has a democratic pedigree (i.e., whether it was created
through an open and participatory process); and (b) whether it is susceptible
to re-constitution (or, what is the same thing, to future exercises of constituent
power). Only a constitutional regime that does not see the people’s constit-
uent power as a threat can meet these requirements.
Granted, a conception of democratic legitimacy that rests on the theory of
constituent power, that seeks to leave the door open for constituent power to
manifest from time to time, might be seen to be accompanied by necessary
and serious risks. As noted earlier, the exercise of constituent power has been
traditionally seen as a threat to both democracy and constitutions. There is
something to the fears associated with constituent power, for constituent
power (as well as democracy) has frequently been invoked by dictators and
despots. The most famous example are probably the words attributed to
Napoleon Bonaparte, “je suis le pouvoir constituent”,43 but there are also more
recent situations in which a dictatorship has declared itself the bearer of the
constituent power (as in Chile under Pinochet, and Spain under Franco).44
Moreover, France, where the theory of constituent power was first developed,
experienced a wave of constitution-making during the eighteenth century
that culminated in dictatorship, and in Latin America, where constituent
power has long been part of the constitutional tradition, one can identify
numerous constitutional breaks followed by constitution-making episodes
(and, literally, hundreds of constitutions). Before considering in more detail
the two criteria mentioned before, it is thus necessary to defend the theory of
constituent power from these possible critiques.
Democratic legitimacy and the risks of constituent power

It should come as no surprise that some authors have depicted the exercise of
constituent power as lawless and arbitrary, as incapable of creating a constitu-
tion or unable to resist the temptation of perpetuating itself.45 For instance, in
the sequel to We the People, Bruce Ackerman identifies constituent power as an
arbitrary will that manifests itself in acts of upheaval in which “law ends, and
pure politics (or war) begins”.46 A group of human beings engaged in the
exercise of constituent power shows no respect for the established constitu-
tional forms; such a group is simply putting into practice the (frequently
violent) ‘right of revolution’, to use Carl Friedrich’s formulation.47
Interestingly, Ackerman’s recommended constitutional politics do not
involve the “sheer acts of will”48 that allegedly characterise constituent power:
even though Ackerman’s revolutionaries (the Founding Federalists, the
Reconstruction Republicans and the New Deal Democrats) failed to follow
the established rules for constitutional change and in that sense engaged in
constituent activity, they “experienced powerful institutional constraints on
their revisionary authority”, as they created new, higher laws without entirely
repudiating the previous constitutional order and tradition.49 Decades earlier,
Hannah Arendt voiced similar concerns, seeing in the theory of constituent
power the potential of a perpetual revolution that would make impossible the
establishment of a firm republic.50 Any structure built on the ever-changing
will of the multitude as its foundation, she wrote, “is built on quicksand”.51
If one attempts to create a constitutional regime that institutionalises these
concerns, one would probably end up with a highly constitutionalist concep-
tion of constitutional change: one that may point to the people as the source of
all power, but that fails to provide them with an actual constitution-making
ability. Even though such a conception would be highly inconsistent with what
has been identified in Chapter 3 as democracy at the level of the fundamental
laws, the critiques of arbitrariness and lawlessness must be taken seriously.
They alert us to the possibility that an exercise of constituent power, instead of
being a participatory constitution-making process that ends in the adoption of
a democratic constitution, empowers an individual or an elite to establish an
autocratic regime, or results in a set of political acts that fail to produce a
constitution altogether. The most powerful response to these critiques emerges
from constituent power’s relationship with democracy. Constituent power
points towards a self-determining demos, a popular sovereign that adopts the
laws which will govern its polity. In that respect, constituent power is much
more than an absolute or arbitrary power to replace one constitution with
another, as Ackerman’s analysis suggests. Rather, constituent power is the
power of those living under a constitutional regime to reformulate its content
democratically, free from any restrictions found in positive law.
In fact, the very meaning of the term of constituent power suggests that a
constitution must be jointly made. As Andreas Kalyvas has explained, the
term constituere, which is formed by the prefix con (‘with’, ‘together’) and the
suffix statuere (‘to set up’, ‘to construct’, ‘to place’), literally means “the act of
founding together, founding in concert, creating jointly, or co-establishing”.52
“The correct use of the term ‘to constitute’,” Kalyvas continues, “prescribes
that if one wants to constitute a new constitution, for example, one ought to
coinstitute it, to institute it jointly with others”.53 The idea that constituent
power is a collective power, the power of a people over their constitution, is of
course not new: Sieyes attributed constituent power to the nation, and
Schmitt, in his best moments, attributed it to the people. It is telling that
even Friedrich depicted constituent power as the power of a group: constituent
power cannot be correctly attributed to an individual or elite.54
Echoing these views, Ulrich Preuss has expressed that “essentially, the
constituent power is the power of a collective body, which by the very act of
constitution-giving, exercises its right to self-rule”.55 In a similar and more
explicitly democratic vein, Dietrich Conrad has suggested that constituent
power “always denoted not merely the constitution-making function somehow
attributed to the people, but direct authorship of the people”.56 Constituent
power, far from being equivalent to the arbitrary will of someone who succeeds
in establishing a constitution, is subject to an important procedural limit: it
must be exercised through a process that includes all those who will become
subject to the constitutional regime.
Since constituent power is closely related to the democratic ideal (more
specifically, to the second dimension of democracy) it requires that a constitu-
tion is created in a manner consistent with the principles of democratic open-
ness and popular participation. In fact, it can be said that the principles of
democratic openness and popular participation are contained in the very
concept of constituent power. As suggested by Sieyes and Schmitt, constit-
uent power involves an unlimited constitution-making faculty, a power that
assumes the constitutional regime from the outside and that is authorised to
alter it in any way that it considers appropriate. No law, ordinary or funda-
mental, is outside the scope of the constituent power: from the perspective of
the constituent subject, the constitutional regime appears as radically open, as
the principle of democratic openness mandates.
In terms of popular participation, it has already been established that
according to most formulations of the concept, constituent power is seen as a
power that must be exercised by those who will live under the new constitu-
tional regime. When understood in this way, constituent power not only
expresses the idea of an unlimited power to re-create constitutions, but of a
power that must be exercised through processes that come, as close as possible,
to the idea of a people giving itself a new constitution. According to this view,
constituent power is always limited by the requirements of a democratic
procedure. This is why to exercise constituent power is to engage in the kind
of politics proper to the practice of democracy at the level of the fundamental
laws. Moreover, as we will see in the next section, in order to be consistent
with itself and avoid depriving the constitutional regime it inaugurates of
democratic legitimacy, an exercise of constituent power should not result in
the abolition of – or fail to create – the rights and institutions necessary to
facilitate future constituent activities.
Now, constituent power’s relationship with the principle of democratic
openness brings to the fore the critique of lawlessness. That is to say, in being
able to approach the constitutional regime from the outside, the constituent
subject might be tempted to adopt constitution after constitution or, what is
even worse, might attempt to perpetuate itself as an absolute decision-making
power. When a ‘just and democratic’ constitution has been adopted, a radical
democratic theory, one that points towards the people’s ability to re-create the
constitutional regime through participatory procedures, appears at best as an
irrelevant nuisance and at worst as a recipe for disaster. When confronted
with this view, the questions that a democrat would ask herself are obvious.
What if a ‘just and democratic’ constitution has not been adopted (or what if
there is simply no such thing)? What if the constitution, far from having
established a just and democratic regime, hinders the possibility of self-
government by creating structures that limit democracy or negate certain
conceptions of what justice requires?
One possible constitutionalist rejoinder to those questions is that, after all, the
typical liberal (ie ‘just and democratic’) constitution is always open to piecemeal
amendments and interpretation. Even if one accepts that view, it is unclear why
more participatory procedures of constitutional change are not also desirable and,
from a democratic perspective, required. That is to say, it is true that constitu-
tional interpretation is capable of ‘augmenting’ the constitution (to use Arendt’s
formulation),57 of expanding (or contracting) the scope of its system of rights and
its protections of minorities, without at the same time involving the risk of a
major constitutional overhaul. But most ordinary amendment processes, eternity
clauses aside, can be used to transform constitutions in radical and important
ways. Why should those processes not be made more inclusive and participatory?
The fact that a highly participatory process would be understood as involving the
exercise of constituent power, and therefore carrying with itself the possibility of
the adoption of a new constitution, should not be seen as a problem in itself,
unless one operates under a profound fear of democracy and popular politics.
After all, nothing prevents government officials from using the amendment rule
of a typical liberal constitution to replace it with a different one.
However, the problem remains that a democratic constituent subject,
seeing itself as unbound by any principle found in the established juridical
order, might potentially rebel against the very idea of law and fail to adopt a
constitution. In other words, if constituent power is a radically unlimited
power, able to produce any substantive content, how to guarantee that it
won’t decide to perpetuate itself? It is of course true that the constituent
power is not subject to positive law, and that an exercise of constituent power
usually involves the transformation of a constitutional regime in ways that go
beyond its ordinary amendment process. Constituent power is thus a ‘rule-
breaking’ activity, a practice that challenges the law, in the sense that it is not
constrained by any limits other than self-imposed ones. But constituent power
has a fundamental relationship with law: its destiny must always be the initi-
ation of a new constitutional regime or the transformation of an old one.58 In
other words, it always has a juridical objective; it is, as Kalyvas has stated, a
juridical power, and “although it is outside established law, it is nevertheless
of the law”.59
In fact, all major theorists of constituent power believed that its exercise
must always result in the establishment of a new or transformed constitution. For
example, insisting that it was “not necessary to take many precautions” against
extraordinary representatives, Sieyes argued that they were just appointed for
“one purpose”, that of creating a new constitution, and for a “limited time”.60
And for Schmitt, while constituent power could be activated at any time, it
always had to result in the making of a fundamental political decision, that is
to say, in the making of a constitution.61 After the fundamental political deci-
sion is formulated and executed through a constituent assembly (or through
the particular mechanism chosen by the constituent power), the assembly
ceases to exist.62 Kalyvas has thus maintained that, for Schmitt, “[w]ith the
creation of a stable constitution, the sovereign moves from a situation of
concrete and physical public prominence to a state of invisibility”.63 This idea
was also recognised by Friedrich, who wrote that constituent power must be
“always employed to establish a constitution” and that if a constitution is not
established, then an exercise of constituent power did not take place.64
This is one of the reasons why majority rule has traditionally been the
decision-making method of constituent assemblies (even of those that create
constitutions whose amendment requires qualified majorities): majority rule
guarantees that a decision will be made and a constitution produced.65
Otherwise, there could be a limitless constituent power, a permanent delib-
eration about fundamental principles and an absence of democratic govern-
ance. Perhaps this is what Preuss means when he writes that constituent power
“is a transitory power that exists only in an evanescent moment of history”.66
The exercise of constituent power cannot be permanent; each episode of
constituent activity must end in the adoption of a novel constitution. Of
course, there is always the possibility (however remote) of a democratically
elected constituent assembly that perpetuates itself, establishes a new ‘revolu-
tionary’ government and assumes permanent, ordinary law-making powers
under the banner of a permanent revolution. Rather than a constituent act,
that would be a coup d’état – an illegitimate seizure of power by a particular
group that has received the mandate to create a new constitutional order but
has instead decided to turn itself into ‘the government’. Fortunately, that is
rarely the case and democratically convened constituent assemblies typically
follow the same pattern: once a constitution is adopted, they immediately
dissolve.67
The finality of an exercise of constituent power is precisely this: to return to
normal politics after a new constitution is established. In that respect, constit-
uent power not only reproduces the principles of democratic openness and
popular participation but adds an important qualification: a constitution
must be produced. There is no reason for a people to be constantly mobilised,
for a constituent assembly to remain active after what was considered a defect
– an injustice in the established constitutional regime – has been corrected.
As suggested earlier, both the major theorists of constituent power aimed at
the establishment of stable political regimes. As Martin Loughlin has argued,
Sieyes, who maintained that the people could exercise their constituent power
after a constitution is in place, thought that “one of the fundamental tasks of
political practice is that this situation never arises”.68 And, as noted by David
Dyzenhaus, even Schmitt, who radicalised Sieyes’ thought and is usually
depicted as a thinker of the exception, “did not reject the idea of a society
comprehensively governed by legal norms, on condition that the political
decision that underpins that legal order is made explicit”.69 In that respect, a
constitutional regime that does not attempt to close the door to the exercise
of constituent power should not be seen as a recipe for arbitrariness and
lawlessness, but as susceptible to episodical democratic transformations. As a
result of that susceptibility, it would be able to claim democratic legitimacy.
The conditions of democratic legitimacy

One can put into question the democratic legitimacy of a government, of a
decision of the legislature or of a particular government official. As suggested
above, this book’s approach to the question of democratic legitimacy is
directed at constitutional regimes. The constitutional regime encompasses
the constitution (be it written or unwritten) and the juridical structures it
creates (e.g., the legislative, judicial and executive branches of governments as
well as their interpretations about what the constitution requires). In other
words, a constitutional regime is the legal apparatus that shapes the exercise
of political power in a given jurisdiction, and its most fundamental com-
ponent is the document or the set of principles known as ‘the constitution’.
In that respect, to talk about the emergence of a constitutional regime and of
the emergence of a new constitution is more or less the same. My conception
of a ‘constitutional regime’ and ‘the constitution’ is strictly domestic: obliga-
tions such as those created by international treaties (e.g., the World Trade
Organization) that for all practical purposes constitute a sort of supra-
constitution, are therefore excluded.70
With respect to a particular constitutional regime, the question of demo-
cratic legitimacy is not about the procedure that the constitution establishes
for law-making (i.e., democracy at the level of governance), but about the
procedures through which the constitution was adopted and about how it may
be altered (i.e., democracy at the level of the fundamental laws). A democrati-
cally legitimate constitutional regime would allow citizens to see the consti-
tution as theirs, as their work in progress, and therefore to value it as their
creation. This might certainly produce what could be seen as ‘loyalty’ toward
the constitutional regime, but that loyalty does not translate into a moral
duty to obey the directives of the constituted powers.71 As noted earlier, legit-
imacy and authority are separate ideas. In some cases, when the constituted
powers’ commands are contrary to the established constitution, the loyalty to
the constitutional regime might in fact recommend disobedience. Moreover,
as will be seen in Chapter 9, when a majority of citizens believe that a consti-
tutional regime (regardless of its democratic legitimacy or lack thereof) needs
to be altered in important ways, they might decide to engage in different
forms of protests (including civil disobedience) in order to activate a constit-
uent process.
Not everyone thinks about the legitimacy of constitutional regimes in the
way I am proposing here. For instance, it has been written that a constitution
is only legitimate “if those who are governed by it, including the organs of the
state, acquiesce to its terms”.72 This kind of approach (reminiscent of Weber)
is not only at odds with the idea of democratic legitimacy, but with the very
idea of democracy. For example, it would consider legitimate a constitution
that was imposed from above, according to which a sole individual exercises
unlimited power as long as the relevant group of human beings ‘acquiesce to
its terms’. I make reference to this approach in order to stress once more that
democratic legitimacy is a broader idea than legitimacy as such. Its ‘demo-
cratic’ element connects the idea of legitimacy to democracy and its corollaries
of openness and popular participation.
In that respect, it is also more specific than other conceptions of democratic
legitimacy. For instance, Joshua Cohen has expressed that “[t]he fundamental
idea of democratic legitimacy is that the authorisation to exercise state power
must arise from the collective decisions of the members of a society who are
governed by that power”.73 But this definition is too general. It is better to say
that for democratic legitimacy demands the participation of ordinary citizens
in constituting (and their possibilities of re-constituting) the norms that
govern the state. That is to say, a democratically legitimate constitutional
regime is one that has emerged from (and created the conditions for) the real-
isation of what in Chapter 3 was identified as the second dimension of democ-
racy. To meet these requirements, a constitutional regime must see constituent
power as having a fundamental role in a democratic polity. This is why the
fact that constituent power has been traditionally ignored by Anglo-American
constitutional theory is fully understandable: if its importance were recog-
nised, most constitutional regimes would be (correctly) seen as characterised
by profound deficits of democratic legitimacy.
Contrary to the dominant constitutional theories of legitimacy (‘the belief
of legitimacy’ and the idea that a legitimate constitution is one that would be
accepted by a rational people),74 a theory of democratic legitimacy that has
constituent power at its centre asks us to look at the actual role that citizens
played during the moment of constitution-making and at the role they are
allowed to play if they wish to adopt a new or radically transformed constitu-
tion. Accordingly, such a theory imposes two main demands on a constitu-
tional regime. First, a constitutional regime should have a democratic pedigree. This
democratic pedigree refers to the degree of openness and popular participation
experienced during the moment of constitution-making, which constituent
power demands in light of its collective character. As noted in previous chap-
ters, the principle of popular participation is not exhausted by the celebration
of a popular referendum for the ratification of the constitutional text. Citizens
must also be involved in the process of creating the constitution, for example,
by being able to initiate a constitution-making process, through the selection
of delegates to a constituent assembly, the presentation of proposals and,
finally, through the ratification of the constitutional changes in a referendum.
Moreover, a constitution must be born out of a context of democratic open-
ness, in which the entire content of the future constitution is open to delib-
eration and debate and in which the constitution-maker is not constrained by
any external or internal agent. That is to say, in a genuine exercise of constit-
uent power, the people (as constitution-maker) cannot be subject to any form
of positive law (national or international). The only exception are those limits
that a democratic citizenry might impose on itself (such as those limits found
in a country’s political culture or perhaps in a set of principles or laws that the
constitution-maker considers appropriate to respect, as might be the case of
the state’s international obligations).75 Most constitutional regimes (espe-
cially, but not only, those with very old written constitutions or with uncodi-
fied ones) would not even come close to meeting the requirement of a
democratic pedigree, a defect that can only be superseded by the adoption of
a new constitution or by the ratification of the existing one through a special
participatory procedure. In fact, most modern constitutions were adopted by
political elites, with the exclusion of large sectors of the population.76
A constitutional regime that lacks a democratic pedigree may still have a
claim to democratic legitimacy (albeit a weaker claim) provided that it meets
the second criterion (which, as we will see shortly, is also the basic condition
of democratic legitimacy): a constitutional regime must be susceptible to democratic
re-constitution; that is, it must not close the door to the future re-emergence of
constituent power. An important part of the theory of constituent power is
precisely about this: that constituent power does not disappear with the crea-
tion of a constitution; that a democratic pedigree is never enough. Although
almost no one who claims to be a democrat is against popularly adopted
constitutions, the idea that a constitution should remain permanently open to
important transformations is controversial.
This second requirement is mainly about the realisation of the principle of
democratic openness, according to which there is no such thing as a finished
constitution and even the most fundamental provisions of the constitutional
regime must be open to debate and be susceptible to change through partici-
patory procedures. In this respect, the second criterion of democratic legiti-
macy is consistent with Habermas’ conception of a constitutional regime as
having a “future-oriented character”, an “openness” that allows present gener-
ations to revisit its basic principles and institutions.77 It is a ‘forward-looking’
criterion, one that looks at the possibilities of democratic re-constitution and
not at the original constitution-making process. Accordingly, it avoids the
problem of the ‘infinite regress’ that plagues some conceptions of democratic
legitimacy (that is, the idea that the procedures of a democratic constitution-
making process must also have been created democratically).78
Kalyvas’ account of constituent power and its relation to democratic legiti-
macy appears incomplete in this respect: “In a democratic regime, the legiti-
macy of the fundamental laws and institutions depends on how inclusive the
participation of citizens is during the extraordinary and exceptional moment
of constitution-making.”79 If taken literally, that conception of democratic
legitimacy would only look at the process through which a constitutional
regime was created, and would not pay attention to its susceptibility to
re-constitution. According to the conception presented here, it is this second
requirement which allows a constitutional regime that lacks a democratic
pedigree to enjoy a minimal degree of democratic legitimacy. In that sense,
the second criterion determines the democratic legitimacy of a constitutional
regime; this is why it can be understood as democratic legitimacy’s basic
condition.
However, it certainly makes a difference if a constitution that meets this
condition was created by a democratic assembly or by a less (or non-) demo-
cratic institution (e.g., a special assembly of experts appointed by an elected
legislature): in other words a constitutional regime that meets the two criteria
discussed above would enjoy a higher degree of democratic legitimacy than
one that meets only the second one.80 Moreover, it is an open question whether
a constitutional regime imposed by a military dictator but that contains an
amendment rule allowing for participatory constitutional change would ever
come to enjoy more than the weakest form of democratic legitimacy possible
(of course, during the moment at which it is imposed, such a regime would
negate, in a radical way, the very idea of democratic legitimacy and the basic
concept of democratic re-constitution).81
This second criterion has an additional and important implication (whose
practical consequences will be fully explored in Chapter 7). Not only must the
constitutional regime be susceptible to re-constitution through highly parti-
cipatory procedures, but all instances of re-constitution must take place through
this kind of procedure. Otherwise, the regime would have failed to provide an
opening for constituent power to manifest, allowing important constitutional
transformations to take place through ordinary and non-participatory proce-
dures. That is to say, fundamental constitutional changes (changes that
amount to an instance of re-constitution) should not be adopted by the ordi-
nary institutions of government or through the normal process of constitu-
tional reform. Those types of changes require an exercise of constituent power
and, as such, must be adopted through the most participatory procedures
possible. Accordingly, if a constitutional regime is re-constituted through a
process that cannot be understood as a genuine exercise of constituent power
(i.e., because it is inconsistent with the principles of democratic openness and
popular participation) then the democratic legitimacy of the (resulting)
regime would be put into question (in a way, the new or re-constituted consti-
tutional regime would also fail to meet the first criterion, since it would lack
a democratic pedigree).
Now, for this second criterion to mean something for actual constitutional
practice, it must have institutional implications. In other words, the constitu-
tional forms must provide the means for constituent power to reappear after
the constitution is in place and, if needed, to put the entire institutional
arrangement into question. To begin with, there must be some basic institu-
tional guarantees in place: freedom of assembly, freedom of expression, the
right to vote; in short, those rights of political participation necessary for the
very existence of democracy.82 If these rights are not respected, an exercise of
constituent power, as well as any form of democratic engagement, would
hardly be possible. As suggested earlier (and however unlikely)83 there could
be an episode of participatory constitutional change, an exercise of constituent
power, which results in the abolition of these guarantees. Even when the
constituent subject is free to adopt any constitution it wants, the abolition of
the rights of political participation (or the creation of a regime that negates
the principles of popular participation and democratic openness) would be
inconsistent with the future exercise of constituent power and with the very
idea of democratic legitimacy. Like democracy, constituent power destroys
itself when it violates the conditions that make it possible.
In this respect, this second criterion is incompatible with, for instance,
a dictatorship established through a democratically elected constituent
assembly and ratified by the people in a referendum. Such a regime would
not be susceptible to democratic re-constitution as it would not contain the
guarantees and institutions that allow citizens to deliberate and decide on the
future of their constitutional regime. Accordingly, it will be characterised by
a profound deficit of democratic legitimacy regardless of its pedigree.
Nevertheless, beyond the recognition of the rights of political participation, a
constitutional regime must have some institutional mechanism in place (in
addition to the ordinary amendment procedure) designed to allow citizens to
propose, deliberate and decide upon fundamental changes to the constitution.
These institutions should allow for the greatest possible degree of popular
participation in constitutional reform, and as facilitators of the exercise of
constituent power, they must not be subject to any substantive limitations
originating in the established juridical order. The nature of these institutions,
characteristic of a weak form of constitutionalism, will be considered in
Chapter 8.
Concluding remarks
To enjoy democratic legitimacy, as I have argued in this chapter, a constitu-
tional regime should have a democratic pedigree and must allow constituent
power to manifest from time to time. Such a regime would be based
on a theory that rejects the idea that constituent power is forever exhausted
with the adoption of a constitution and provide a means of egress, an outlet
for it to become manifest when important juridical transformations are
needed. Only a constitutional regime that is open to this kind of transforma-
tion, I have argued, can be considered legitimate from a democratic perspec-
tive; and even one that did not originate in a democratic constitution-making
episode can enjoy a degree of democratic legitimacy if it is susceptible to
re-constitution. In most modern states, the adoption of the mechanisms that
would make this possible would itself involve a change in the balance of power
as it would take away from the legislature the ability to re-constitute the
juridical order. As will be argued in Chapter 8, only a constitutional regime
based on a weak form of constitutionalism, one that does not see constituent
power as a threat, can ever be considered legitimate from a democratic
perspective.
Before advancing that conception of constitutionalism and considering the
constitutional forms that would be consistent with it, it is necessary to explore
the types of constitutional transformations that warrant the exercise of constit-
uent power. As such, the next chapter will argue that for a constitutional
regime to meet the demands of democratic legitimacy it must distinguish
between ordinary and fundamental constitutional change. In the absence of
such a distinction, every single change in the constitution would require a
degree of participation that would trivialise constituent power or make consti-
tutional change as remote and infrequent as the founding of a new state. If
these democratic processes are simply made parallel to the ordinary amend-
ment procedure – that is, if the people and the legislature were attributed with
the same powers of constitutional reform – not only would the ordinary legis-
lature become a sort of constituent assembly in permanent session, duplicating
the people as constituent subject, but it would have the power to abolish the
institutions that allow for the very possibility of democratic re-constitution.
Notes
1 “To speak of constituent power is to speak of democracy. In the modern age
the two concepts have often been related . . .” Antonio Negri, Insurgencies:
Constituent Power and the Modern State, Minneapolis: University of Minnesota
Press, 1999, p 1.
2 David Beetham, The Legitimation of Power, New Jersey: Humanities Press Inter-
national, 1991, pp 4–5.
3 Ibid., p 4.
4 Hans Kelsen, Introduction to the Problems of Legal Theory: A Translation from the
First Edition of Reine Rechtslehre or Pure Theory of Law, Oxford: Clarendon Press,
1992, p 18; Hans Kelsen, Pure Theory of Law, Berkeley: University of California
Press, 1967, p 209.
5 Joseph Raz, ‘Kelsen’s Theory of the Basic Norm’, in Stanley L. Paulson et al
(eds), Normativity and Norms: Critical Perspectives on Kelsenian Themes, Oxford:
Clarendon Press, 1998, p 51.
6 Beetham, The Legitimation of Power, p 5.
7 Ibid., p 6. For a similar view, see Charles Taylor, ‘Alternative Futures: Legiti-
macy, Identity and Alienation in Late Twentieth Century Canada’, in M. Daly
(ed), Communitarianism: A New Public Ethics, California: Wadsworth, 1994, p 58.
For Taylor, legitimacy “is meant to designate the beliefs and attitudes that
members have toward the society they make up. The society has legitimacy
when members so understand and value it that they are willing to assume the
disciplines and burdens which membership entails. Legitimacy declines when
this willingness flags or fail”. Ibid.
8 Ibid.
9 Max Weber, ‘The Profession and Vocation of Politics’, in Peter Lassman
and Ronald Speirs (eds), Weber: Political Writings, Cambridge: Cambridge
11 For an attempt to combine some of these accounts, see Chris Thornhill, ‘Political
Legitimacy: A Theoretical Approach Between Facts and Norms’, Constellations,
2011, vol 18(2), p 135.
13 Ibid.
14 John Rawls, A Theory of Justice, Cambridge: Harvard University Press, 1999,
p 314.
p 224.
17 For a different and recently developed typology, see Pierre Rosanvallon, ‘The
Metamorphoses of Democratic Legitimacy: Impartiality, Reflexivity, Proximity’,
Constellations, 2011, vol 18(2), p 114.
18 For an approach that seeks to distinguish between justification and legitimacy,
see Wojciech Sadursky, ‘Law’s Legitimacy and “Democracy-Plus”, Oxford Journal
of Legal Studies, 2006, vol 26(2), p 377. For a distinction between ‘substantive
theories of legitimacy’ and ‘procedural theories of legitimacy’ that explains how
these theories differ in terms of the role they attribute to the content of the laws,
see Scott Hershovitz, ‘Legitimacy, Democracy, and Razian Authority’, Legal
Theory, 2003, vol 9, p 221. For approaches that do not seem to distinguish
between these concepts see Rawls, Political Liberalism, p 224; Ronald Dworkin,
Law’s Empire, Cambridge: Harvard University Press, 1986, pp 190–191; Joseph
Raz, The Morality of Freedom, Oxford: Oxford University Press, 1986, pp 70–71;
Leslie Green, The Authority of the State, Oxford: Oxford University Press, 1990,
p 5; Jeffrey Reiman, In Defense of Political Philosophy, New York: Harper and
Row, 1972, pp 41–42.
19 A. John Simmons, ‘Justification and Legitimacy’, Ethics, 199, vol 109(4), p 739.
See also A. John Simmons, Justification and Legitimacy: Essays on Rights and
Obligations, Cambridge: Cambridge University Press, 2000.
20 Simmons, ‘Justification and Legitimacy’, p 742.
21 As Simmons himself notes, Locke does not use the terms ‘legitimacy’ and
‘justification’ in this context.
23 John Locke, Two Treatises of Government, New York: Hafner Publishing Co.,
1956, p 184, para 123.
24 Simmons, ‘Justification and Legitimacy’, p 752
25 Ibid., p 755.
26 Kant argues that persons have rights (e.g., the innate right to freedom or prop-
erty rights) that can only be respected and enjoyed in civil society. To respect
the rights of others, each person has an obligation to leave the state of nature
and accept membership in civil society under coercive law. Thus, for Kant the
justification of the state (its necessity for the realisation of rights) involves an
obligation to accept the duties of civil society. As Simmons notes: “This justifi-
cation is apparently intended by Kant to at the same time legitimate particular
states by binding each of us to obedience to the laws of our own states.” Ibid.
See also Immanuel Kant, The Metaphysics of Morals, Cambridge: Cambridge
University Press, 1996 and Immanuel Kant, ‘Perpetual Peace’, in Hans Reiss
(ed), Kant: Political Writings, Cambridge: Cambridge University Press, 1991.
27 Simmons, ‘Justification and Legitimacy’, p 761. The most famous of these con-
temporary Kantians is Rawls.
28 This means that all states, including liberal democratic states, are illegitimate.
For Simmons this does not make questions about legitimacy unimportant or
irrelevant: “If all states are illegitimate, how important can questions about
legitimacy be? The proper answer, I think, is that state legitimacy remains an
important dimension of institutional evaluation because where states are legiti-
mate with respect to persons, those states can justify acting . . . in more restric-
tive fashions, and those persons can justify less in the way of noncompliance and
resistance than where states are illegitimate with respect to persons.” Simmons,
‘Justification and Legitimacy’, n 68.
29 In his entry in A Companion to Contemporary Political Philosophy, Richard E. Flath-
man takes the same route: “Together with its kissing cousins ‘authority’ and
‘obligation’, legitimacy is a notion that should arouse apprehension. Govern-
ments that are legitimate have the ‘right to rule’, to demand obedience from
their citizens or subjects.” Richard E. Flathman, ‘Legitimacy’, in Robert E.
Goodin and Philip Pettit (eds), A Companion to Contemporary Political Philosophy,
Oxford: Blackwell Publishers, 1997, p 527.
31 See Leslie Green, ‘Legal Obligation and Authority’, in Stanford Encyclopedia of
Philosophy, Available http://plato.stanford.edu/entries/legal-obligation/>
(accessed 8 September 2011).
32 Many authors use the term ‘legitimacy’ as equivalent to the term ‘authority’. See
for example Randy E. Barnett, ‘Constitutional Legitimacy’, Columbia Law
Review, 2003, vol 103, p 116: “A lawmaking system is legitimate, then, if it
creates commands that citizens have a moral duty to obey.” For a recent discus-
sion, see Jon Garthoff, ‘Legitimacy is not Authority’, Law and Philosophy, 2010,
vol 29, p 669.
33 For an overview of some of these conceptions see Sadurski, ‘Law’s Legitimacy
and “Democracy-Plus”’.
34 It could also be maintained that subjects should obey the law if laws are reason-
able, wise, etc.; in other words, if they can be justified. For a discussion of the
ways in which the concepts of legitimacy, justification and authority ‘interact’
with each other, see Sadurski, ‘Law’s Legitimacy and “Democracy-Plus”’.
35 Allen Buchanan, ‘Political Legitimacy and Democracy’, Ethics, 2002, vol 112,
p 695.
36 One author who has stressed this point is Allen Buchanan. See his Justice, Legiti-
macy and Self-Determination: Moral Foundations for International Law, Oxford:
Oxford University Press, 2004.
37 Ibid., p 242. In that respect, consent might make a constitutional regime legiti-
mate in the Weberian sense but, as we will see later, it is not enough to make it
democratically legitimate.
38 As Barber has written, “[t]he doctrine of consent was originally intended to give
obedience a justification rooted in the interests of individuals rather than in the
authority of states (in the rights of the ruled rather than in the rights of rulers)
and did not necessarily entail democratic arrangements”. Benjamin Barber, A
Passion for Democracy, Princeton: Princeton University Press, 1988, p 17.
39 See Hershovitz, ‘Legitimacy, Democracy, and Razian Authority’, p 217 and
Alexander Kirshner, ‘Proceduralism and Popular Threats to Democracy’, Journal
of Political Philosophy, 2010, vol 18(4), p 420. This obligation to take compliance
with democratically enacted laws seriously is not to the state but to other citi-
zens. Buchanan, Justice, Legitimacy and Self-Determination, p 253.
40 See Buchanan, ‘Political Legitimacy and Democracy’, p 714.
41 See Jeremy Waldron, ‘Rights and Majorities: Rousseau Revisited’, in John W.
Chapman and Alan Wertheimer (eds), Majorities and Minorities, New York: New
York University Press, 1990.
42 This does not mean, however, that democratic legitimacy might not be one of the
sources in which the legitimacy (in the sense of ‘the belief in legitimacy’) of a
legal system rests. See Richard H. Fallon, Jr., ‘The Core of an Uneasy Case For
Judicial Review’, Harvard Law Review, 2008, vol 121, p 1693.
43 Andrew Arato, ‘Forms of Constitution Making and Theories of Democracy’,
Cardozo Law Review, 1996, vol 17, p 198, n 19.
44 See Renato Cristi, ‘The Metaphysics of Constituent Power: Schmitt and the
Genesis of the Chile’s 1980 Constitution’, Cardozo Law Review, 2000, vol 21,
p 1748.
45 A different line of attack to constituent power, which goes beyond the focus in
its potential risks, has been advanced by David Dyzenhaus. For Dyzenhaus, “the
question of constituent power simply does not arise for a liberal account of the
rule of law”. Dyzenhaus, ‘The Politics of the Question of Constituent Power’,
in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism:
Constituent Power and Constitutional Form, Oxford: Oxford University Press, 2007,
pp 129–130. Dyzenhaus invites liberals to locate the ultimate source of author-
ity of a legal order in principles “which are required to make sense of an ongoing
practice of legality”, rather than in a legally uncontrolled constituent power.
Ibid., p 144. A power who wishes to be sovereign must rule in accordance with
the rule of law, which is taken to include principles such as impartiality, fairness
and equality before the law. By respecting these principles, the institutions of a
legal order collaborate in the ongoing constitution of a legitimate political
authority. Despite its undeniable force, Dyzenhaus’ approach lacks any reference
to the relationship between constituent power and democracy and, as a result, he
does away with the question of constituent power at the price of neglecting its
democratic potential.
46 Bruce Ackerman, We the People II: Transformations, Cambridge: Harvard University
Press, 1998, p 11.
47 Carl Friedrich, Constitutional Government and Democracy: Theory and Practice in
Europe and America, New York: Blaisdell Publishing Company, 1950, p 129.
48 Ackerman, Transformations, p 11.
49 Ibid.
50 Hannah Arendt, On Revolution, Penguin Books, 1990.
51 Ibid., p 163.
52 Andreas Kalyvas, ‘The Basic Norm and Democracy in Hans Kelsen’s Legal and
Political Theory’, Philosophy and Social Criticism, 2006, vol 32(5), pp 588, 589.
53 Ibid.
54 Friedrich, Constitutional Government and Democracy, p 132
55 Ibid.
Power’, The Indian Year Book of International Affairs, India: Madras, 1966–1967,
p 403.
57 Arendt, On Revolution, p 202.
Constellations, 2005, vol 12(2), pp 233–234.
59 Ibid., p 234.
60 Emmanuel Joseph Sieyes, What is the Third Estate?, New York: Praeger, 1963,
p 131.
61 Carl Schmitt, Constitutional Theory, Durham: Duke University Press, 2008,
p 140.
62 For a discussion, see Arato, ‘Forms of Constitution Making and Theories of
Democracy’, pp 202–205.
63 Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl
Schmitt, and Hannah Arendt, Cambridge: Cambridge University Press, 2008, p 133.
64 Friedrich, Constitutional Government and Democracy, p 130.
65 Ulrich Preuss, ‘The Exercise of Constituent Power in Central and Eastern
Europe’, in The Paradox of Constitutionalism, p 219. Locke also expressed this idea
when he wrote that “where the majority cannot conclude the rest, there they
cannot act as one body, and consequently will be immediately dissolved again”.
Locke, Two Treatises of Government, p 170, para 98.
66 Preuss, ‘The Exercise of Constituent Power in Central and Eastern Europe’,
p 218.
67 Of course, an ordinary legislature can be attributed with constitution-making
faculties and, after the constitution is adopted, remain as an ordinary legislature
(different examples of this model are provided by Spain in 1977, by the Czech
and Slovak Republics in 1992 and by South Africa in 1996). For a discussion, see
Andrew Arato, ‘Forms of Constitution Making and Theories of Democracy’.
Moreover, some constituent assemblies have decided to exercise ordinary law-
making powers while drafting the new constitution (even though they have dis-
solved after the constitution was created). For example, in Venezuela, the
Constituent Assembly that drafted the Constitution of 1999 adopted several
ordinary laws and even removed some judges from office. See Ricardo Combellas,
‘El Proceso Constituyente y la Constitución de 1999’, Politeia, 2003, vol 26(30),
p 100. See also Laura Louza, ‘La Independencia del Poder Judicial a Partir de la
Constitución de 1999’, Politeia, 2007, vol 30(38), p 151. In eighteenth-century
France, too, the Constituent Assembly engaged in different forms of governance
and in the adoption of ordinary laws, but after the king formally agreed to the
new constitution in September 1791, the assembly immediately dissolved (the
National Convention that began to operate one year later, however, attempted to
perpetuate itself and extended its own powers in important ways). Alfred
Cobban, A History of Modern France, Vol 1: 1715–1799, Penguin Books, 1963, pp
163, 176, 184, 250–251. There are some interesting examples of state conven-
tions in nineteenth-century US that engaged, even if for a limited period, in the
making of ordinary laws. For example, the South Carolina Convention of 1895
established a new county, paid interests on the public debt, put the counties on a
cash basis and passed three statutes validating the subscriptions for stock in
several railroads. In fact, this convention got so carried away with the idea of
legislating that one of the members moved ‘that there shall be no session of the
legislature this year, but the convention shall do its work in its place’. Roger
Sherman Hoar, Constitutional Conventions: Their Nature, Powers, and Limitations,
Boston: Little, Brown, & Company, 1917, Chapter XI, sec 8.
68 Martin Loughlin, The Idea of Public Law, Oxford: Oxford University Press, 2003,
p 63.
69 David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Herman
Heller in Weimar, Oxford: Oxford University Press, 2003, p 46.
70 This is certainly an important discussion, but it is out of the scope of this book.
See for example Stephen Clarkson, Uncle Sam and Us: Globalization, Neoconserva-
tism and the Canadian State, Toronto: University of Toronto Press, 2002, in
particular chapter 4, “NAFTA and WTO as Supraconstitution”; David Schnei-
derman, Constitutionalizing Economic Globalization: Investments Rules and Democracy’s
Promise, Cambridge: Cambridge University Press, 2008. I am also assuming that
there are no competing claims to constituent power. In a constitutional regime
that faces a demand of secession by a segment of the citizenry, the question of
democratic legitimacy seems more like a luxury than like a real political aspira-
tion: when the objective is keeping the constitutional regime from falling into
pieces, the idea of democracy at the level of the fundamental laws is not a prior-
ity. In this kind of situation, the central question becomes: what group(s) has the
constituent power? The answer to this question is decisive with respect to
democratic legitimacy because whoever has the constituent power has the power
to legitimate the constitutional regime or to establish a separate (potentially
democratically legitimate) one. This is an answer that is profoundly political: it
is to be found in political struggle and argumentation and not in established
domestic or international law. Suffice it to say that while the competing claim to
constituent power might have its roots in nationalism, it might partly rest in
what is perceived as a democratically illegitimate constitutional regime: a consti-
tution that is seen as imposed on part of the citizenry, even if it is a constitution
that contains what are thought to be the right content. In Canada, the case of
Quebec and the patriation of the constitution in 1982 might provide an example
of this point. See Peter H. Russell, Constitutional Odyssey: Can Canadians Become a
Sovereign People?, Toronto: Toronto University Press, 1993.
71 This point is, of course, reminiscent of the idea of constitutional patriotism,
most famously put forward by Jürgen Habermas. For a discussion, see Jan-
Werner Müller, ‘A General Theory of Constitutional Patriotism’, International
Journal of Constitutional Law, 2007, vol 6(1), p 72.
72 François Venter, ‘Constitution Making and the Legitimacy of the Constitution’,
in Antero Jyränki (ed), National Constitutions in the Era of Integration, The Hague:
73 Joshua Cohen, ‘Procedure and Substance in Deliberative Democracy’, in Seyla
Benhabib (ed), Democracy and Difference: Contesting the Boundaries of the Political,
Princeton: Princeton University Press, 1996, p 95.
74 Consider, for example, the following statement by Ronald Holzhacker: “There
are two main methods for assessing the democratic legitimacy of a political
system. The first one is to evaluate the political system against normative
theory, enquiring to what extent a political system conforms to certain norma-
tive criteria. The second is to determine empirically the extent a political system
is seen as right and deserving of loyalty by its citizens – the members of a partic-
ular polity.” Ronald Holzhacker, ‘Democratic Legitimacy and the European
Union’, European Integration, 2007, vol 29(3), p 259. These methods are about
finding legitimacy in an order that did not have it when it was created and do
not pay attention to the possibilities of its re-creation.
75 This is probably what the delegates to the Venezuelan constituent assembly had
in mind when, after recognising the unlimited constituent power of the people,
included a constitutional provision that stated: “The people of Venezuela, loyal
to the republican tradition, to their independence struggle, to peace and
freedom, will not recognise [desconocerá] any regime, law, or authority that is
inconsistent with the values, principles, and democratic guarantees or that
erodes human rights.” Constitution of Venezuela (1999), Article 350.
76 The history of the making of the US Constitution is telling in this respect.
77 Jürgen Habermas, ‘Constitutional Democracy: A Paradoxical Union of Contradic-
tory Principles?’, Political Theory, 2001, vol 29(6), p 774. Habermas’ conception
of legitimacy, however, sometimes appears wanting from the perspective of
popular participation. See for example his discussion of Rousseau and Schumpeter
in Jürgen Habermas, ‘Legitimation Problems in the Modern State’, in Communica-
tion and the Evolution of Society, Cambridge: Polity Press, 1991, pp 186–187.
78 On this point, see Christopher Zurn, ‘The Logic of Legitimacy: Bootstrapping
Paradoxes of Constitutional Democracy’, Legal Theory, 2010, vol 16(3), p 191.
79 Kalyvas, ‘Popular Sovereignty, Democracy, and the Constituent Power’, p 237.
See also Andreas Kalyvas, ‘Book Review’, Constellations, 2001, vol 8(3), p 413.
Perhaps what Kalyvas means is that every important constitutional transforma-
tion counts as an act of ‘constitution-making’ in itself, thus presenting a concep-
tion of democratic legitimacy that implicitly recognises the possibility of
constitutional (re)making.
80 See Zurn, ‘The Logic of Legitimacy: Bootstrapping Paradoxes of Constitutional
Democracy’.
81 A constitution that has been created through an open and participatory
constitution-making process but is not susceptible to democratic re-constitution
would arguably enjoy an important degree of democratic legitimacy at the
moment of its creation and shortly afterwards, but would lose that democratic
legitimacy through time.
82 For a conception of democratic legitimacy that focuses on the pre-conditions of a
democratic decision-making process, see Fabienne Peter, Democratic Legitimacy,
London: Routledge, 2009.
83 There are, to my knowledge, no historical examples of a democratically elected
constituent assembly that has decided to abolish democracy. In fact, available
empirical evidence suggests that the more participatory a constitution-making
process is, the more likely it is that the constitution it produces allows for differ-
ent forms of popular participation. See Tom Ginsburg, Zachary Elkins and
Justin Blount, ‘Does the Process of Constitution-Making Matter?’, Annual
Review of Law and Social Science, 2009, vol 5, p 201.
7 The transformation of the juridical
Not all constitutional regimes emerge out of democratic constitution-making

episodes. In fact, many countries enjoying a reasonable degree of democratic
governance frequently operate under constitutions adopted by state officials
with little or no participation from ordinary citizens (unwritten constitutions
would almost, by definition, fit this description).1 Other countries suffer from
a different problem: they operate under constitutions that were imposed from
the outside, even if drafted by an elected constituent assembly and ratified in
a referendum.2 In the previous chapter, I suggested that such regimes are not
necessarily illegitimate from a democratic perspective. Their claim to demo-
cratic legitimacy might lie in the fact that, although adopted through a
process inconsistent with the basic principles of the democratic ideal (e.g., a
constitution adopted by a group of well-intentioned jurists or by an ordinary
legislature), they can be re-constituted democratically. Before exploring the
question of what specific type of political practices amount to a democratic
re-constitution (a question that will be considered in Chapter 8), it is neces-
sary to determine what kind of constitutional changes amount to the creation
of a new constitution. That is to say, when can we be said to be witnessing an
instance of re-constitution?
In answering that question, this chapter will advance a distinction between
the power of constitutional reform and the exercise of constituent power: the
latter representing an episode of fundamental constitutional change in which
an active citizenry produces novel juridical forms without being subject to
any form of positive law; the former only capable of producing certain consti-
tutional changes and not requiring the same level of direct public involve-
ment. This distinction is important since, if it were necessary for every
constitutional change to be made through extraordinary and highly participa-
tory procedures, the approach to democratic legitimacy presented in this book
would hardly have any practical applications. Constitutions sometimes need
to be changed in order to correct a small defect or to replace or alter a
provision that has become anachronistic, and there is no reason why those
small changes, which sit somewhere between the creation of an ordinary law
and the adoption of a new and different constitution, should always be adopted
through highly participatory procedures. Put differently, a system in which
The transformation of the juridical 127
all constitutional changes have to be adopted through a process that involves
intense levels of popular participation is neither practical nor desirable: it
would unnecessarily burden both citizens and governments, forcing them to
engage in costly and time-consuming procedures that are best reserved for
exceptional circumstances.
The solution, however, cannot be found in the opposite extreme; that is,
a system in which legislative majorities (like in the United Kingdom) or
supermajorities (like the United States) can make any constitutional change
whatsoever, and in which the participation of the citizenry is minimal or non-
existent. In contrast, this chapter will defend a distinction between ordinary
and fundamental changes, each of them requiring a different set of procedures.
When a fundamental constitutional change takes place, the constitutional
regime is re-constituted, and thus an exercise of the people’s constituent
power is required (as mandated by the second condition of democratic legiti-
macy). The chapter begins by examining the distinction between ordinary
and fundamental constitutional change through a discussion of Carl Schmitt’s
and John Rawls’ thoughts on the limits of constitutional reform.
It then considers an unorthodox (but increasingly popular) approach that
puts Schmitt’s and Rawls’ conceptions into practice: the judicial doctrine of
unconstitutional constitutional amendments, which rests in a recognition of
the distinction between constituted and constituent power, and suggests that
certain changes can only be adopted by the constituent subject. The chapter
then moves to explore the ways in which traditional constitutional arrange-
ments deal with the distinction between ordinary and fundamental constitu-
tional change and, indirectly, with the question of constituent power. The
problem, it will be seen, is that distinguishing between ordinary and funda-
mental constitutional change does not mean much from the perspective of
democracy at the level of the fundamental laws unless that latter kind of
change takes place through procedures consistent with the principles of
popular participation and democratic openness.
Schmitt and Rawls on the limits of constitutional reform

Eternity clauses, of course, are a way of distinguishing between fundamental
and non-fundamental constitutional change. For example, when Article 60 of
Brazil’s Constitution (1988) prohibits amendments that abolish federalism,
universal suffrage, the separation of powers and individual rights, or when
Article 268 of the Constitution of the Dominican Republic (2010) puts the
republican, democratic and representative form of government outside the
scope of the amending power, they are in fact identifying what was considered
fundamental for those countries’ constitution-makers. This chapter, however,
will focus on the theory of implicit limits to the power of constitutional reform
and, apart from a few brief comments, it will not consider in detail the role of
eternity clauses. In so doing, it seeks to suggest that all constitutions, not just
those containing unamendable constitutional clauses, have a fundamental
core whose alteration is equivalent to the creation of a new constitution. Such
alterations, it will be argued, must take place through an exercise of constit-
uent power (which mandates the use of highly participatory mechanisms).
John Rawls and Carl Schmitt provide important insights into the distinction
between ordinary and fundamental constitutional change, as well as the
relationship between the theory of implicit limits to constitutional reform
and constituent power: their views will be considered below.
It is not commonplace to find similarities in the thoughts of authors with
such different intellectual and political orientations as Rawls and Schmitt.
The former was a leading liberal political philosopher, the latter was directly
involved with Nazism after 1933; it would be difficult to find two scholars
with more radically opposing trajectories. Rawls and Schmitt, however,
reached similar conclusions regarding the limits of constitutional reform.
They both believed that a constitutional amendment, even if adopted with the
strictest respect to the constitution’s amendment rule, could be unconstitu-
tional if it resulted in the creation of a different juridical order.3 Schmitt,
whose conception of constituent power was discussed in Chapter 5, developed
a theory of constitutional amendments based on a clear differentiation between
the power of constitutional reform and constituent power. In particular, he
defended a distinction between the ‘Constitution’ (understood as the conscious
decision of the constituent subject in favour of a determinate mode of political
existence) and mere ‘constitutional laws’ (understood as individual constitu-
tional clauses enumerated in the document called ‘the Constitution’ but
lacking a truly fundamental character).4
In the context of a written constitution, the kind of decisions that make the
constitution different from particular constitutional laws can often be
identified in the constitutional text, usually in those articles that refer to
the basic structure of government, as well as in the preamble (in fact,
Schmitt insisted that preambles frequently contain clear statements of the
fundamental political decisions of the constituent subject, and should there-
fore not be discarded as ‘mere proclamations’).5 For instance, in the context
of the Weimar Constitution (Schmitt’s specific frame of reference), these
decisions included Article 1’s adoption of democracy as a form of
government, the rejection of monarchy,6 the adoption of a federal structure of
government, of parliamentarism and of the institutions of the “bourgeois
Reschstaat with its principles, fundamental rights and the separation of
powers”.7 Moreover, Schmitt maintained that an alteration of Article 76
(the amendment procedure) would also amount to the elimination of the
constitution: the power to reform the constitution cannot modify the legal
provision that regulates its existence and competencies.8 Constitutional laws,
in contrast, are simply norms that have been included in the written
constitution in order to protect them from ordinary parliamentary
majorities.9 To continue with the Weimar Constitution, one could refer to
Article 149 as an example of a constitutional law: “Universities will maintain
Faculties of Theology.”
Schmitt believed that constitutional laws were the proper object of the
ordinary power of constitutional reform, as opposed to the fundamental
decisions contained in the Constitution, which could only be touched by the
constituent subject. Thus, an alteration or suppression of the above mentioned
Article 149 through the ordinary amendment procedure would be perfectly
valid, while the substitution of Article 1 for a clause that reads “All power
stems from the King” (regardless of how respectful one is of the amendment
formula) would signify the annihilation10 of the Constitution and the revolu-
tionary creation of a new one.11 It is not that constitutional laws are unimpor-
tant; they were considered important by the constitution-makers and hence
they included them in the document titled ‘the Constitution’. However,
constitutional laws fall short of having the fundamental character of the deci-
sions pertaining to a people’s political existence. It is thus absurd, according
to Schmitt, to attribute equal status to all constitutional provisions, to see the
constitution simply as a collection of clauses that are different from ordinary
laws by virtue of not being susceptible to amendment through the same
processes (in the case of a rigid written constitution).
Interestingly, Schmitt’s conception of the limits of constitutional reform also
applies to systems that operate under the doctrine of parliamentary sovereignty.
For him, depictions of the Westminster Parliament as “all powerful” were a cause
of great confusion, since “a majority decision of the English Parliament would
not suffice to make England into a Soviet state”.12 “Only the direct, conscious
will of the entire English people, not some parliamentary majority,” he added,
“would be able to institute such fundamental changes.”13 Moreover, those consti-
tutions that contain explicit limits to the amending power, like the German,
Italian and Norwegian Constitutions, simply make clear the distinction between
amendment and revolution, between constitutional reform and constituent
power: if something is put outside the scope of the amending power it must be
because it is of such a fundamental character that can only be altered by the
constituent subject.14 Even in the context of those constitutions that explicitly
allow for the ‘total revision’15 of the constitutional text, a change in the basic form
of government (e.g., replacing a republic with a monarchy) would go beyond the
realm of constitutional reform and could not be considered constitutional.16
The idea is that the power to reform a constitution, a constituted power,
does not include the power of producing the kind of profound changes proper
to an exercise of constituent power.17 Only the constituent subject is capable
of altering the Constitution, and when this happens, we are no longer speaking
about constitutional reform but about constitution-making, about the crea-
tion of a new and different Constitution.18 In short, the fundamental political
decisions “are a matter for the [constituent power] of the German people and
are not part of the jurisdiction of the organs authorised to make constitutional
changes and revisions”.19 Under this view:
The boundaries of the authority for constitutional amendments result

from the properly understood concept of constitutional change. The
authority to “amend the constitution”, granted by constitutional legisla-
tion, means that constitutional provisions can substitute for individual or
multiple ones. They may do so, however, only under the presupposition
that the identity and continuity of the constitution in its entirety is
preserved. This means the authority for constitutional amendment
contains only the grant of authority to undertake changes, additions,
extensions, deletions, etc., in constitutional provisions that preserve the
constitution itself. It is not the authority to establish a new constitu-
tion . . . The offices with jurisdiction over a decision on a constitution
amending statute do not thereby become the bearer or subject of the
[constituent power].20
Rawls reached a similar conclusion in Political Liberalism, where he embraced

the “radical idea”21 that not every change introduced into the US Constitution
according to Article V (its amending provision) produces a valid amendment.
For Rawls, the adoption of a ‘democratic constitution’ should be understood
as an expression of the constituent people of governing itself in a certain way
and of fixing, once and for all, certain constitutional essentials.22 These consti-
tutional essentials refer to: (a) fundamental principles that specify the general
structure of government and the political process (such as the powers of the
legislature, executive and the judiciary, and the scope of majority rule); and
(b) basic political rights and liberties that legislative majorities are to respect
(such as the right to vote and participate in politics, liberty of conscience,
freedom of thought and of association, and the protections of the rule of law).23
Constitutional essentials are to be considered higher law (and as such, an
expression of the people’s constituent power) and to be distinguished from the
creations “of Congress and of the electorate”.24 Interestingly, Rawls operates
under a Lockean conception of ‘constituent power’ (discussed in Chapter 5):
“. . . [The] constituent power of the people sets up a framework to regulate
ordinary power, and it comes into play only when the existing regime has
been dissolved.”25
Must an amendment negatively affecting these constitutional essentials,
asks Rawls, be accepted as valid by the Supreme Court?26 For Rawls, the
answer is a clear ‘no’. He maintains that to be valid, a constitutional amend-
ment of this sort must do at least one of the following things: alter basic
institutions in order to remove weaknesses that come to light in subsequent
constitutional practice (e.g., Twenty-second Amendment of the US
Constitution, limiting the President to two terms); or adjust basic constitu-
tional values to changing political and social circumstances or incorporate a
broader understanding of those values (e.g., the Nineteenth Amendment,
which granted women the right to vote).27
As examples, Rawls considers an amendment to repeal the First Amendment
of the US Constitution in order to establish an official religion, and the
suppression of the Fourteenth Amendment with its equal protection of the
laws. Rawls argues that even if these amendments were enacted according to
Article V they should be declared invalid by the judiciary. When confronted
with the question of their validity, courts should say that they contradict
“the constitutional tradition of the oldest democratic regime in the world”.28
The idea is that the constitution might be amended in order to make its
protections more inclusive or to correct weaknesses in the basic institutions,
but not to repeal or reverse its essential protections29:
Should that happen, and it is not inconceivable that the exercise of polit-
ical power might take that turn, that would be a constitutional break-
down, or revolution in the proper sense, and not a valid amendment of the
constitution. The successful practice of its ideas and principles over two
centuries place restrictions on what can count as an amendment, whatever
was true at the beginning.30
Both Schmitt and Rawls defended the view that the power of constitutional
reform is not unlimited, and that there can be such a thing as an unconstitu-
tional constitutional amendment. Although Schmitt focuses on those aspects
that tend to express the basic form of the polity, and Rawls stresses the recog-
nition of fundamental rights (whose non-amendable character appears to be
connected to whether they have been respected for a long period of time), they
agree that there are certain aspects of the constitutional regime that cannot be
the object of constitutional reform. It is not clear, and this is where these two
authors differ, whether the limits created by Rawls’ ‘constitutional tradition’
also apply to the constituent power.
The problem stems from Rawls’ apparent identification of constituent
power with the power to amend a constitution through the ordinary amend-
ment procedure (e.g., Article V).31 As Samuel Freeman has noted, for Rawls,
“[n]ot everything that the people actually will in the exercise of their constit-
uent power can count as a valid amendment”.32 This, combined with Rawls’
Lockean conception of constituent power as only appearing after government
is dissolved makes this aspect of his approach simply puzzling: either constit-
uent power appears every time Article V is used (which would run counter to
the distinction between the constituted power of constitutional reform and
constituent power)33 or it only appears after government is dissolved (which
would mean that constituent power is not exercised through Article V, or that
every time Article V is used, government dissolves).34
Schmitt is much clearer in this respect. For him, the power to reform the
constitution and the constituent power must never be identified with each
other, and the limits that apply to the former do not apply to the latter: the
constituent subject can create and destroy constitutions at will. On this point
I agree with Schmitt. Placing limits on the subject of constituent power – the
sovereign people – amounts to a negation of democracy at the level of the
fundamental laws and of the principle of democratic openness (this does not
mean, of course, that the constituent subject cannot impose certain limits on
itself). Accordingly, the conception of constitutional reform and democratic
legitimacy that I present in this book is incompatible with the part of Rawls’
view that appears to hold that the constituent power is subject to substantive
limits found in the existing juridical order.
Interestingly, Rawls’ conception has in fact found support in the jurispru-
dence of the German Federal Constitutional Court. As early as in 1951, the
Constitutional Court expressed that there are some principles so fundamental
that they even “bind the framer of the constitution”,35 and as recently as 2010
expressed that it “may remain open due to the universal nature of dignity,
freedom and equality alone [whether the Basic Law’s eternity clause] even
applies to the constituent power”.36 In contrast, following Schmitt, I maintain
that these limits only apply to the ordinary institutions of government, not to
the constituent power (at least not when understood in light of its connections
to the democratic ideal).
The judicial doctrine of constitutional substitution

Of course, the idea that a constitutional amendment might be unconstitu-
tional precedes both Schmitt and Rawls. Aristotle seems to have suggested it
when he asked: “On what principles ought we to say that a State has retained
its identity, or conversely, that it has lost its identity and become a different
State?”37 The answer provided by Aristotle was that a polis’ identity changes
when its constitution is altered as a result of an interruption of its essential
commitments.38 A change in the polis’ identity cannot be considered a mere
reform, but signifies the birth of a new regime. This idea is also reflected in
Article 16 of the Declaration of the Rights of Man and Citizen of 1789, which
reads: “Any society in which the guarantee of rights is not secured, or the
separation of powers not determined, has no constitution at all.” If the exist-
ence of a constitution depends on the protection of certain rights and on the
separation of powers, an attempt to suppress those principles (even an attempt
that respects the formal amendment formula) cannot be understood as a mere
amendment: it would amount to the destruction of the constitution as opposed
to its modification.39
Courts in countries such as Germany, Colombia and India have adopted,
under different grounds, the idea of unconstitutional constitutional amend-
ments.40 This doctrine is of fundamental importance for the conception of
democratic legitimacy presented here: it allows us to differentiate between
mere amendments and (re)constitution-making episodes, the latter involving
an exercise of constituent power and therefore requiring the deployment of
highly participatory procedures of constitutional change. The German Federal
Constitutional Court has, several times, asserted its jurisdiction to strike
down constitutional amendments (even if abstaining from exercising that
power)41 if their content contradicts the central values upon which the consti-
tution rests. While some academics and courts seem to suggest that the origin
of that power is to be found in a form of higher law principles pre-existing the
constitution,42 discussions about the Court’s ability to invalidate constitu-
tional amendments usually start with the eternity clause contained in
Article 79 of the Basic Law (1949). That is to say, according to the court, the
Basic Law contains an explicit limit to constitutional reform, established by
the constituent power, which demarcates the distinction between ordinary
and fundamental constitutional change, and provides a legal justification for
the Court’s ability to review the amending power.
The Constitution of India (1950), however, lacks any eternity clauses, yet
the country’s Supreme Court was able to assert a jurisdiction similar to that of
its German counterpart. In the landmark case of Kesavananda Bharati v Kerala
(1973),43 the Supreme Court of India determined that while parliament had
the power to amend any constitutional provision, it could not alter the basic
structure of the constitution. For the court, the constitution’s preamble and
some constitutional clauses attributed a special importance to certain princi-
ples (among the principles mentioned in the different concurring opinions
were those of constitutional supremacy, the republican form of government,
federalism, the welfare state, individual liberty, and secularism).44 The court
developed further the doctrine of the basic structure in Minerva Mills v Union
of India (1980),45 insisting that the power of constitutional reform conferred
on parliament was a limited one and could not be used to repeal or abrogate
the existing constitution: “Amend as you may even the solemn document
which the founding fathers have committed to your care, for you know best
the needs of your generation. But, the Constitution is a precious heritage;
therefore you cannot destroy its identity.”46
An interesting – and from the perspective of the conception of democratic
legitimacy defended in this book, particularly relevant – question emerges
here. Since the Indian Constitution does not contain any means for the
exercise of the constituent power of the people, what would happen (and
what would the basic principles of democracy require) if, at some point,
a large majority of the Indian citizenry wishes to create a new constitution?47
In respect to this question, probably the most instructive case is Opinion
C-551/03 of the Colombian Constitutional Court. Unlike the German Basic
Law, the Colombian Constitution of 1991 lacks explicit limits to constitu-
tional reform (i.e. eternity or unamendable constitutional clauses) and, unlike
the Indian (and the German) Constitution, the Colombian Constitution
allows the legislature to convene (by a majority vote subject to popular
referendum) a constituent assembly that could be used for the adoption
of an entirely new constitution or for the radical transformation of the
existing one.48
As a result, the decision of the Colombian Constitutional Court not only
had to surpass the important hurdle of developing a judicial doctrine of
implicit limits to the power of constitutional reform, but it also had to recog-
nise that those limits only applied to the constituted powers, not to the
constituent subject. Opinion C-551/03 is also extraordinary in an additional
way: Article 241 of the Colombian Constitution clearly establishes that the
Constitutional Court can only revise proposed amendments for procedural or
formal defects in their adoption (‘sólo por vicios de forma o procedimiento’).49 Also
interesting is the fact that, in rendering its decision, the Colombian
Constitutional Court openly relied on Schmitt’s conception of the constituent
power.
This section will examine in some detail the reasoning of the Colombian
Constitutional Court in Opinion 551/03. It will also consider the ways in
which the doctrine created in that decision (i.e., the doctrine of ‘constitutional
substitution’) has subsequently been developed. While my conception of
democratic legitimacy does not require a judiciary with the power to strike
down ‘unconstitutional’ constitutional amendments (it does not even require
giving judges the power to strike down legislation), the arguments presented
by the Colombian Constitutional Court throw light on the distinction
between ordinary and fundamental constitutional change, as well as the rela-
tionship between the latter kind of change and the exercise of constituent
power. The constitutional amendments at issue in Opinion C-551/03 were
supposed to come into existence after their approval in a referendum, which
was originally presented as an opportunity to vote against ‘petty politics and
corruption’ (contra la corrupción y la politiquería), and included 19 questions.
These questions were about disparate issues, such as the modification of the
electoral system, the alteration of the budget process, the regulation of
political parties, the public policy on drug-related offences and the prolonga-
tion of the period in office of the governors and mayors (including those
already in office).50
Not surprisingly, the supporters of the referendum argued that in assessing
the constitutionality of the proposed amendments, the court had to limit
itself to examine whether the formal requirements established in the
amendment rule were met. Those on the other side of the controversy asked the
court to examine the substance of the amendments and, among other things,
argued that a constitutional amendment could be declared unconstitutional if it
contradicted the fundamental principles in which the constitution rested (or if
it was inconsistent with Colombia’s international obligations). Thus, an
important part of the decision focused on the meaning of the phrase ‘only
for procedural or formal defects’ and on whether there existed substantive
limits to the power of constitutional reform. The court’s decision, written by
Eduardo Montealegre Lynett, began by agreeing with the idea that the
content of a proposed constitutional change, unlike the content of an ordinary
law, could not be the object of judicial review. Otherwise, the court stated, the
power of constitutional reform would be abolished because a constitutional
change is, by definition, always inconsistent with the constitutional text that it
seeks to transform (and contradict).51 Accordingly, the court’s only role with
regard to a proposed constitutional reform was, just as Article 241 states,
ensuring that the requirements of the amendment procedure were strictly
followed.
However (and here is where the court’s reasoning takes an interesting and
decisive twist), in the context of constitutional reform, procedure and
substance overlap with each other. The court began its discussion of the
relationship between substance and procedure with the following line of
argument. According to the court, competence (competencia, understood as the
legal power of producing a determinate legal consequence) is a fundamental
part of any procedure: it would be legally meaningless to follow each of
the requirements of a determinate amendment procedure if one lacks the
competence to produce the desired outcome.52
Thus, the court expressed, when Article 241 of the Constitution of 1991
restricts the review power of the court with regard to constitutional amend-
ments to that of identifying procedural or formal defects, it is necessarily
conferring on that body the power to examine if the institution promoting the
constitutional changes is acting ultra vires.53 The contrary would mean that
the court would be unable to do anything if confronted with a constitutional
change adopted through strict adherence to the amendment rule, but by an
organ without the competence to bring that kind of change into existence.
In this way, the court was able to avoid what looked like an insuperable
constraint on its faculty of reviewing the content of proposed constitutional
amendments.
There was, however, an additional hurdle: does the power of constitutional
reform created by the Constitution of 1991 have any competencies? That is, is
it susceptible of being exercised ultra vires in the sense of being used to adopt
changes that are outside the scope of its authority? This was not an insignifi-
cant hurdle because if the power of constitutional reform is not subject to any
limits with regard to the types of changes it is allowed to produce, then the
previous argument (even if accepted) would lack any practical effects in the
context of the Colombian constitutional regime. The fact that the Constitution
of 1991, unlike other constitutions, did not have eternity clauses added an
additional layer of complexity. In light of these facts, the court proceeded to
develop the doctrine of implicit limits to the amending power. According to
the court, legal scholars and courts around the world have recognised that,
under any democratic constitution (even under one that does not contain
explicit limits to constitutional reform), the power of constitutional reform is
subject to certain substantive limits. These limits, the court continued,
emerge from the nature of the power of constitutional reform as a constituted,
rather than a constituent, power.54
The authorities the court cited to sustain this proposition included
Schmitt’s Constitutional Theory, whose ideas are also reflected in the discussion
that followed.55 The next step was to elaborate the distinction between
constituent and constituted power. The court defined the former “as a power
which belongs to the people, who always has the faculty of giving itself a
Constitution”.56 It maintained that constituent power (poder constituyente
originario57) “was not subject to juridical limits, and constitutes, above all, an
exercise of the political power of those associated”58 in a political community.
Quoting from an earlier decision, the court characterised constituent power as
“absolute, unlimited, permanent, without limits or jurisdictional controls,
because its acts are political and foundational (político-fundacionales) and not
juridical, whose validity derives from the political will of the society”.59
To this already Schmittian approach, the court added that political commu-
nities in contemporary states always remained free to exercise, in an episodical
and transitional manner, their constituent power “in order to revise or modify
its fundamental political decisions and to give its juridical institutions, new
forms and content. . .”60 The court then moved to explain that the power of
constitutional reform (as a constituted power or as a poder constituyente derivado)
was subject to several types of limits and control. The very process of
constitutional reform, which includes a set of formal requirements that need
to be met for an amendment to be valid, is an example of one of those limits.
The question, according to the court, is not whether the power of constitu-
tional reform, as a constituted power, is subject to legal limits (as it clearly is),
but whether its competencies are also limited.61 That is, whether there are
some topics, some contents, outside its scope of authority. Now, the fact that
the Constitution of 1991 did not contain any unamendable clauses might
suggest that the power of constitutional reform is not subject to any substan-
tive limits. For the court, this was only partially true. That is to say, it is
correct that any article of the Constitution of 1991 can be reformed and modi-
fied. However, this does not mean that one can use the amendment rule to,
instead of reforming the constitution, replace it with a new and different
one.62 This is the Colombian doctrine of ‘constitutional substitution’, now
famous among Latin American jurists. The court then proceeded to connect
the doctrine of ‘constitutional substitution’ with the text of the Constitution
of 1991.63 According to the court, when Article 374 establishes that “the
Constitution can be reformed”, it is not making reference to any constitution,
but to the Constitution of 1991. Under that reading, the constitutional text
only authorises changes to the existing constitution, rather than giving
government the power to replace it with a new one.
This means that the constitution must “preserve its identity as a unity”,
independently of the modifications that it might suffer over time: “the power
of constitutional reform may modify any part of the constitutional text, but
those modifications cannot involve the suppression of the Constitution or its
substitution with a new one”.64 Nowhere in the ordinary amendment rule is
there an authorisation “to eliminate or substitute the existing Constitution
with a different one, something that can only be done by the constituent
power”.65 The court limited itself to giving one example of a ‘constitutional
substitution’: “[f]or instance, the power of constitutional reform cannot be
used in order to substitute the Social and Democratic State and the Republican
form of government (Article 1) with a totalitarian state, a dictatorship or a
monarchy, because that would mean that the Constitution of 1991 has been
replaced with a different one”.66
An objection to this argument, the court expressed, is that this doctrine
could have the effect of making the constitutional regime permanent, and
causing a constitutional rupture, a break in legal continuity, if the Colombian
society determines that the substitution of the Constitution of 1991 is
necessary.67 This led the Colombian Constitutional Court to briefly consider,
in obiter, the question that has haunted constitutional theorists for decades:
what is the role of ‘the people’, as the bearer of the constituent power, after a
constitution has been adopted? When a constitution is reformed, the court
argued (agreeing again with Schmitt), even if the changes are adopted through
a referendum, it is not the constituent subject that acts.68 What takes place in
those instances is an exercise of constituted power, authorised and limited by
the constitutional text.
But, (as asked above) what if the entire citizenry, or a great majority of it,
supports the adoption of a new and different constitution? If the constitution
does not provide any means for the exercise of constituent power, one arrives
at the following dilemma: either the constituent power is asphyxiated by the
limits to the power of constitutional reform, or a constitutional rupture is
necessary in order to allow for an exercise of constituent power to take place.69
Nevertheless, in the opinion of the court, the Constitution of 1991 attempted
to ‘solve’ that problem, to ease the tension between democracy and constitu-
tionalism through the institution of the constituent assembly convened by the
legislature (Article 376), which can be used as a means for the exercise of
constituent power.
It is true, expressed the court, that any attempt to channel constituent
power is always imperfect, because constituent power, by its very nature,
“does not admit a total institutionalisation”.70 However, the court continued,
by providing the possibility of convening a constituent assembly (a provision
that is absent from most constitutional regimes, including those that contain
eternity clauses and/or operate under the judicial doctrine of implicit limits to
constitutional reform, like Germany and India), the Constitution of 1991
sought to facilitate, rather than to negate, the expression of constituent power
without causing unnecessary constitutional ruptures. After defending the
doctrine of ‘constitutional substitution’ and asserting its jurisdiction to
examine whether the amending power had been exercised ultra vires (i.e.,
whether its competencies had been exceeded), the court did not find that the
proposed reforms involved the creation of a new constitution.
Even while some aspects of the referendum were declared invalid,71 the
court concluded that the proposed changes were under the sphere of authority
of the power of constitutional reform, and thus ‘constitutional’. Since 2003,
when Opinion C-551/03 was rendered, the court has had the opportunity to
develop the doctrine of ‘constitutional substitution’ further.72 One of the most
important of these decisions took place in 2005, in a case that dealt with a
reform seeking to allow the president to run for a second term. In that case,
the court developed a sophisticated “juridical methodology” (the details of
which are out of the scope of this chapter) to be used by a judge who is called
to determine whether a constitutional substitution has taken place.73
Nevertheless, the court did not find that modifying the Constitution of 1991
to allow for presidential re-election involved a violation of the jurisdictional
limits of the amending authority. It expressed that the constitution’s ‘essential
elements’ – including the social and democratic state, as well as the republican
form of government, the unitary and decentralised state, and the participatory
and pluralist democracy – were preserved intact. Moreover, according to the
court, allowing for presidential re-election did not contravene the republican
principle of alternabilidad (generally understood as requiring that the exercise of
political power is periodically alternated among different persons).74
Nevertheless, the Constitutional Court reached a different conclusion in
2010 about a proposed constitutional reform to allow the president to run for a
third consecutive term. In Opinion C-141 of 2010, it declared unconstitutional
an amendment (presented by popular initiative) that sought to achieve that
result.
After pointing out a series of irregularities in the amendment process, the
court, in Opinion C-141/10, expressed the opinion that the proposed change
amounted to the substitution of the Constitution of 1991, since it was in
conflict with its fundamental principles, including the separation of powers,
the system of checks and balances, the rule about alternation in power, the
right to equality, and the general and abstract character of the laws.
Interestingly, the court maintained that although the constitutional reform
was presented through popular initiative (unlike in Opinion C-551/03) and
would be subject to referendum, this did not mean that it amounted to an
exercise of constituent power (as those mechanisms are simply part of the
ordinary amendment process).75
Interestingly, one year later the highest Venezuelan court confronted an
amendment seeking to remove all barriers to re-election; it not only allowed
elected officials to run for a second or third time, but to run consecutively for
office as many times they wished.76 As in Colombia in 2003, those who
opposed the amendment argued that the ordinary process of constitutional
reform could not be used to alter the fundamental principles embedded in the
constitution. The Venezuelan court asserted its jurisdiction to declare a con-
stitutional amendment ‘unconstitutional’, but maintained that allowing
continuous re-election did not alter in any way the constitution’s fundamental
principles and therefore would not result in the creation of a different
constitution (even though Article 6 of the Venezuelan constitution contains
an eternity clause that seeks to preserve the principle of alternabilidad).
Moreover, the court maintained that a referendum asking the people
whether they wanted to amend the constitutional text in order abolish the
limits on re-election could be understood as an example of participatory
democracy in action (in fact, the court stated that the decision in favour of
participatory democracy was one of the “fundamental decisions” made by the
constituent power that created the Constitution of 1999).77 These contrasting
approaches to presidential re-election in Colombia and Venezuela are a good
illustration of an idea expressed below; that is, that countries will differ about
the types of changes considered fundamental or amounting to the creation of
a new constitution.
Constitutional reform and acts of the people
I have suggested above that the idea that the power of constitutional
reform is not unlimited complements, in important ways, the conception of
democratic legitimacy presented in the previous chapter. This is by no means
obvious: if the doctrine of implicit limits is about certain constitutional
provisions that cannot be changed, and democratic legitimacy requires that
everything in a constitution be open to change, this theory seems to run
counter to the argument presented in this book. Nevertheless, what the
doctrine of implicit limits does do (at least the conception of the doctrine
favoured here) is to point towards a distinction between fundamental and
ordinary constitutional change, placing the former exclusively in the hands of the
constituent subject and stressing the distinction between constitutional reform and the
exercise of constituent power. Thus, if constituent power is understood in terms of
its connections to the democratic ideal, the doctrine of implicit limits provides
additional footing to the argument that fundamental constitutional change
should only result from a participatory and open process. Moreover (and this
follows from the last point), the doctrine of implicit limits, when considered
from the perspective of constituent power, suggests that there must be a
correlation between the substance of an amendment and the procedure used
for its adoption.
In other words, the more fundamental the change, the more participatory
and transparent the amendment process should be.78 The correlation, it should
be stressed, is not based on making the procedures for important transforma-
tions difficult or impossible (as in the case of many constitutional regimes that
accept the distinction between ordinary and fundamental constitutional
change), but in making them more democratic. This does not mean that non-
fundamental changes should never be adopted through participatory proce-
dures, but that the most participatory procedures are demanded by democratic
legitimacy only in the context of fundamental constitutional change (as will
be seen in Chapter 8, this point is especially relevant in the context of
unwritten constitutions).
It is nevertheless true that the doctrine of implicit limits to constitutional
reform, in its traditional formulation, may be seen as a reflection of liberal
constitutionalism’s discomfort with constitutional change (particularly
popular constitutional change), and the aspiration to the permanence of the
constitutional regime. However, my intention here is to adopt the underlying
theoretical premise of this doctrine (the distinction between constituent
power and constitutional reform) and use it against this discomfort with
important constitutional transformations.79 Under this approach, the fears of
the constitutionalist – the ever-present possibility of popular meddling with
the constitution – becomes an essential component of a democratically legiti-
mate constitutional regime.
Now, even if one accepts the idea that certain modifications are out of the
scope of the ordinary power of amendment, several important questions
remain. What counts as a fundamental constitutional change? How does one
distinguish between fundamental and ordinary constitutional principles or
clauses? These questions are important to my argument because, as seen
earlier, only fundamental constitutional transformations must take place
through a process that amounts to an exercise of constituent power. In distin-
guishing between the fundamental and non-fundamental, one option would
be to return to Schmitt and Rawls.
For them, those constitutional clauses that reflect a decision of the constit-
uent subject regarding ‘its mode of political existence’ (to use Schmitt’s
phrase) or in favour of a ‘democratic constitution’ (to use Rawls’ phrase) – such
as the adoption of a ‘democratic form of government’, federalism, the decision
in favour of parliamentarism or presidentialism, the amendment formula
itself, the scope and limits of majority rule as a decision-making method, as
well as basic liberal rights and liberties (including the protections of the rule
of law) – are to be considered fundamental. The decisions from Colombia and
Venezuela, briefly discussed above, also identify certain principles that might
be considered fundamental (some of which are in fact very similar to those
identified by Schmitt and Rawls).
While those sources provide a good indication of the kind of provisions that
would be considered fundamental in most contemporary societies, the distinc-
tion is highly dependent on a society’s history and political culture and will
thus vary from country to country.80 In Canada, for example, as early as in
1927, Ernest Lapointe proposed an amendment formula according to which
‘ordinary amendments’ could be adopted by the federal Parliament with the
consent of a majority of the provinces. For ‘fundamental amendments’ (i.e.,
those involving questions of provincial rights, the rights of minorities or
rights affecting ‘race, language and creed’), the unanimous consent of the
provinces would have been required.81 The current amendment formula,
adopted in 1982, rests on similar distinctions. Under the current formula,
changes touching issues related to the national languages, the monarchy (e.g.,
the offices of the Queen and the Governor General), provincial representation
in Parliament, the composition of the Supreme Court of Canada, as well as
amendments to that part of the amendment rule, require provincial unanimity
(as well as approval by the two houses of the federal legislature).82
The idea that some constitutional principles are more fundamental than
others is not exclusive to countries with written constitutions. For example,
although not explicitly establishing a distinction between fundamental and
non-fundamental constitutional change, English courts have maintained that
a statute that “(a) conditions the legal relationship between citizen and state
in some general overarching manner, or (b) enlarges or diminishes the scope
of what we would now regard as fundamental constitutional rights”,83 cannot
be subject to implied repeal. Moreover, in a recent report of a Select Committee
of the House of Lords, it was stated that “not all constitutional change is of
equal significance”, and suggested that changes involving “fundamental
constitutional issues” might appropriately be subject to special procedures
(i.e., referendums).84 In New Zealand, too, there have been judicial expres-
sions (and extra-judicial expressions by judges) that point in a similar direc-
tion. For instance, Lord Cooke has famously argued in favour of the existence
of certain common law principles so fundamental that not even parliament
can change, such as “the operation of a democratic legislature and the opera-
tion of independent courts”, and the “existence and functioning of the
Crown”.85
Arguably, even within specific countries, the fundamental or non-
fundamental character of constitutional principles is not static but may be in
a permanent state of flux: what is considered fundamental in a particular
historical context might not be considered so at another time. However,
while different societies will produce and assume different conceptions of
the distinction between fundamental and ordinary constitutional change, the
rights and institutions (whatever specific form they take) that are necessary
for the exercise of constituent power present a special case. They are constitu-
tive of the ability of the citizenry to put into question any principle(s) of the
constitutional regime and are necessary for the practice of democracy at the
level of the fundamental laws.
As such, they should not be subject to abolishment by ordinary govern-
mental institutions (even through especially difficult amendment rules), and
their alteration could only take place through an exercise of constituent power:
only citizens can deprive themselves of their sovereignty (and in that very act
deprive their constitutional regime of democratic legitimacy). Perhaps this
type of situation is what the delegates to the Venezuelan Constituent Assembly
had in mind when, after recognising the unlimited constituent power of the
people, included in the Constitution of 1999 a provision that stated: “The
people of Venezuela, loyal to the republican tradition, to their independence
struggle, to peace and freedom, will not recognise [desconocerá] any regime,
law, or authority that is inconsistent with the values, principles, and
democratic guarantees or that erodes human rights.”86
As we have seen, the idea of having a special procedure in place for funda-
mental constitutional change is not alien to actual constitutional practice. But
the fact that a constitution establishes special procedures for certain types of
amendments does not necessarily mean that these ‘special procedures’ seek to
increase opportunities for popular participation or that they can be properly
understood as facilitating the exercise of constituent power. For instance, the
Constitution of Spain (1978), briefly mentioned in Chapter 4, establishes two
different mechanisms for constitutional change. The first procedure requires
the affirmative vote of three-fifths of both houses of parliament. This procedure
(Article 167), which Spanish constitutional theory calls ‘general’,87 requires a
referendum if requested by one-tenth of the members of either of the houses.
However, the procedure cannot be used for the total revision of the constitution,
or a partial revision that affects basic constitutional principles and fundamental
rights.88 In order to reform such provisions, one must recur to the ‘excep-
tional’89 procedure established in Article 168, which not only requires the
affirmative vote of two-thirds of both houses, but the immediate dissolution of
parliament and the calling of a general election.90 The new parliament must
approve, again by a two-thirds majority, the proposed changes, and the
modifications must be submitted to the electorate in a referendum.
The emphasis in the Spanish Constitution seems to be (as is also the case in
the previously mentioned Canadian Constitution with respect to changes that
require provincial unanimity) not so much on making the process leading to
important transformations more participatory (unless one sees the ideal of
popular participation exhausted in a referendum),91 but on making it more
difficult. In fact, the process established in Article 168 of the Spanish
Constitution seems to have the purpose of making fundamental transforma-
tions close to impossible. The approach defended in this book does not seek to
make the adoption of fundamental changes more difficult or unlikely, but
more democratic.
The idea is not that a legislature should be able to adopt fundamental
constitutional changes easily (as in a flexible, written or unwritten, constitu-
tion), but that there should be procedures in place that allow citizens to
become protagonists of important transformations of their juridical order. In
other words, it would not mean much if a constitutional regime requires that
important transformations be effected through ‘democratic’ mechanisms if
these mechanisms are very difficult or impossible to activate. The constitu-
tional regime must possess a true escape valve for the constituent power,
rather than merely recognising that it continues to exist after the constitution
is in effect, while at the same time ‘doing away’ with it, as most constitutional
regimes do.
There are at least four methods of ‘doing away’ with constituent power: (a)
mystifying constituent power; (b) displacing constituent power; (c) legalising
constituent power; and (d) hiding constituent power. The mystification of
constituent power can easily co-exist with the other three methods. The idea
is to recognise (at the level of constitutional discourse) the people’s power to
adopt a new or radically modified constitution but without providing any
institutional means for this power to be exercised. This is a very common
approach: while most constitutionalists and politicians would agree that the
people have an unlimited power to re-create their juridical order, they gener-
ally abstain from proposing mechanisms that would allow something that
resembles the exercise of that power to actually take place.92 The displacement
of constituent power by ordinary government takes place in countries which,
like the United Kingdom and New Zealand, have an unwritten (or partially
unwritten) constitution and operate under the principle of parliamentary
sovereignty. Here, there is an almost complete identification of ‘parliament’
and ‘people’; the former appears as a constituent assembly in a potentially
permanent session,93 and the latter rarely makes an appearance other than
voting in regular elections.94
The legalisation of constituent power is similar to its displacement but
occurs in the context of some written constitutions. Under this kind of arrange-
ment, the power of amendment is left in the hands of parliament and is subject
to procedural hurdles that are relatively easy to meet (as in the case of some
types of amendments under the Indian Constitution), so that the amendment
process (and the organ with the power of constitutional reform) becomes
‘equivalent’ to the constituent power (it is thus not surprising that through the
Twenty-fourth Amendment, the Indian Parliament – unsuccessfully –
attempted to declare itself the bearer of an ‘unlimited constituent power’).95
Contrast this with the hiding of constituent power, exemplified in rigid consti-
tutions (i.e., constitutions that are very difficult to amend, such as the US
Constitution). This type of constitution ‘buries’ constituent power under an
amendment formula that can technically be used to change any constitutional
provision, but whose requirements are extremely difficult to meet.96 Thus, the
very existence of an ‘unlimited’ power of constitutional reform makes an exer-
cise of constituent power seem unnecessary and, at the same time, the strin-
gent requirements of the amendment procedure tend to prevent important
transformations from taking place.
In these four situations the result is the same: popular participation in
constitutional change is reduced to a minimum, and the modification of the
fundamental laws becomes a very difficult enterprise or just a special kind of
ordinary law-making (as in a flexible or unwritten constitution). A constitu-
tional regime that does away with constituent power cannot be considered
legitimate from a democratic perspective. It is not enough to have a constitu-
tion in which every single disposition can be changed, if the procedures for
amendment are so stringent as to make any kind of modification highly
unlikely. In the same way, it is not enough to have a constitution that can
easily be amended if the ordinary legislature will do all the work and highly
participatory procedures are simply not part of the equation.
Democracy mandates an openness that can be accessed by the citizenry; one
which comes accompanied by heightened opportunities for popular participa-
tion (in this respect, the ideals of popular participation and democratic
openness are radically intertwined, and their separation sometimes becomes
unstable). To be democratically legitimate, a constitutional regime must
not mystify, displace, legalise or hide constituent power; on the contrary, it
must provide a real possibility for its exercise, thus allowing citizens to
see themselves as the real (or potential) authors of the constitution.
Accordingly, those constitutions (like the Colombian Constitution of 1991)
that provide legislative majorities with the initiative to convene an extraordi-
nary constitution-making assembly are a step in the right direction but, as
will be seen in the next chapter, one that does not go far enough.
Concluding remarks
This chapter defended a distinction between ordinary and fundamental consti-
tutional changes. The theory of implicit limits to the power of constitutional
reform, defended by Schmitt and Rawls, as well as the judicial doctrine of
constitutional substitution developed by the Colombian Constitutional
Court, provide important insights as to the ways in which that distinction
could be made, as well as to the relationship between that distinction and the
theory of constituent power. However, distinguishing between ordinary and
fundamental constitutional change only takes us halfway to the type of consti-
tutional regime that can meet the demands of democratic legitimacy. In other
words, what kind of mechanism, what kind of processes, should be available to
citizens if they wish to engage in fundamental constitutional transformations,
to exercise their constituent power and substitute the existing constitutional
regime with a new one? What type of ‘amendment rule’ is required by
democratic legitimacy in the context of fundamental constitutional changes?
Those questions will be answered in the next chapter. As we will see, only a
‘weak’ form of constitutionalism, one that is freed from Lycurgian tendencies
and that does not see constituent power as a threat, can ever come to enjoy
democratic legitimacy.
Notes
1 The case of Canada in 1982 is telling in this respect. A wealthy democratic
country engaged in important constitutional transformations through a process
that was driven from the top down and in which the participation of citizens
was limited to occasional consultation in committees that lacked decision-
making power. See generally Peter H. Russell, Constitutional Odyssey: Can
Canadians Become a Sovereign People?, Toronto: Toronto University Press, 2004.
2 An example of this kind is that of Puerto Rico, which adopted a constitution
through an elected ‘constituent assembly’ and a series of referendums, but whose
content was limited beforehand by the US Congress. See generally José Trías
Monge, Historia Constitucional de Puerto Rico, Volume III, San Juan: Editorial de
la Universidad de Puerto Rico, 1982. More recent examples include that of
Iraq and Afghanistan. For a discussion, see Andrew Arato, Constitution Making
Under Occupation: The Politics of Imposed Revolution in Iraq, New York: Columbia
3 Note that the emphasis here is not on the mechanisms that could be used in
order to enforce implicit limits on constitutional change (e.g., judicial review of
constitutional amendments) but in the realisation that there are some parts of a
constitution of a higher hierarchy than others.
pp 75–80. See also, Jeffrey Seitzer, ‘Carl Schmitt’s Internal Critique of Liberal
Constitutionalism’, in David Dyzenhaus (ed), Law as Politics: Carl Schmitt’s
Critique of Liberalism, Durham: Duke University Press 1998, p 290.
5 Schmitt, Constitutional Theory, pp 78–79.
6 “All state authority stems from the people” and “The German Reich is a
Republic”. Ibid., p 77.
7 Ibid., pp 77–78.
8 Ibid., p 150. This point is especially relevant when a democratic amendment
formula is seen as one of the guarantees of democratic legitimacy. The problem
of amending the ‘amendment formula’ through the amendment formula itself
has also been approached from the perspective of the logic and coherence
of a constitutional system. See Alf Ross, ‘On Self-Reference and a Puzzle in
Constitutional Law’, Mind: A Quarterly Review of Psychology and Philosophy,
Vol. LXXVIII, No. 309 (1969). See also Peter Suber, The Paradox of Self-
Amendment: A Study of Law, Logic, Omnipotence, and Change, New York: Peter
Lang Publishing, 1990. The recent constitutional changes in Hungary, in which
an amendment rule that required a 4/5 majority for the creation of a new consti-
tution, was altered by a 2/3 majority (that is, the majority required for ordinary
amendments) exemplify this problem. For a discussion, see Andrew Arato, ‘Post
Sovereign Constitution-Making in Hungary: After Success, Partial Failure, and
Now What?, 2011. Online. Available http://lapa.princeton.edu/eventdetail.
php?ID=473> (accessed 9 September 2011).
10 Schmitt distinguished between ‘constitutional elimination’, ‘constitutional
annihilation’ and ‘constitutional change’. Constitutional elimination involves
the alteration of the substantive core of the constitution, constitutional annihila-
tion involves a change in the identity of the constituent subject, and constitu-
tional change a revision of the constitutional laws (one that leaves the
fundamental political decisions intact). Schmitt, Constitutional Theory, p 147.
11 Ibid. Of course, the principle protected by Article 1 could be changed while
leaving the text of that Article untouched. That is, by inserting into the
constitution several clauses that result in its abolition for all practical purposes.
12 Ibid., pp 79–80.
13 Ibid. This statement is reminiscent of George Lawson’s view with respect to the
limits of parliamentary sovereignty (for a brief discussion, see Chapter 5 of this
book).
14 Ibid., p 152. As Dietrich Conrad has expressed: “Such provisions [that establish
explicit limits on the power to reform a constitution] are valuable indications
that the power to amend does not by the nature of things participate in the
supposed omnipotence of constituent sovereignty but is a constituted, and hence
legally definable, power.” Dietrich Conrad, ‘Limitation of Amendment
Procedures and the Constituent Power’, The Indian Year Book of International
Affairs, India: Madras, 1966–1967, p 379. Nevertheless, Conrad argued that the
ambiguity of these kinds of clauses makes them “little more than guide-posts to
systematic interpretation and doctrine”. Ibid. Consider for instance that in
France, commentators disagree on the correct interpretation of an eternity clause
that reads: “The republican form of government shall not be the object of an
amendment” (Art 89 of the French Constitution, 1958). For some, this clause
should be understood only as a prohibition of the restoration of monarchy; for
others, it should be interpreted more broadly, as including other principles such
as secularism, the rule of law, etc. For a brief discussion, see Claude Klein, ‘A
Propos Constituent Power: Some General Views in a Modern Context’, in
Antero Jyränky (ed), National Constitutions in the Era of Integration, The Hague:
15 See for example the Federal Constitution of the Swiss Confederation (1999),
Article 193: “A total revision of the Federal Constitution may be proposed by
the People or by one of the Chambers, or may be decreed by the Federal
Parliament.”
17 Ibid., p 151.
18 Schmitt distinguished between constitution-making and constitutional change;
ideas he considered qualitatively different “because in the first instance the word
‘constitution’ denotes the constitution as complete, total decision, while in the
other instance it denotes only the individual constitutional law”. Ibid., p 80.
19 Ibid., pp 152, 74.
20 Ibid., pp 150–151.
21 Samuel Freeman, ‘Political Liberalism and the Possibility of a Just Democratic
Constitution’, Chicago-Kent Law Review, 1994, vol 69, p 662.
p 232.
23 Ibid.
24 Ibid., p 231. On this point, Rawls follows Bruce Ackerman’s theory of dualist
democracy. However, Ackerman rejects the possibility of an unconstitutional
constitutional amendment. See Bruce Ackerman, ‘Constitutional Politics/Con-
stitutional Law’, Yale Law Journal, 1989, vol 99, pp 469–470.
25 Rawls, Political Liberalism, p 231.
26 Ibid., pp 233, 238.
27 Ibid., pp 238–239. For a similar view, see Walter F. Murphy, ‘Merlin’s
Memory: The Past and Future Imperfect of the Once and Future Polity’, in
Sanford Levinson (ed), Responding to Imperfection, Princeton: Princeton University
Press, 1995, pp 173–174.
28 Rawls, Political Liberalism, p 239. The doctrine of implicit limits to constitu-
tional reform was rejected (without much discussion) by the US Supreme court
at the beginning of the twentieth century. See National Prohibition Cases, 253 US
350 (1920); Leser v Garnett, 258 US 130 (1922); Coleman v Miller, 307 US 433
(1939). Nevertheless, it has made many appearances in American constitutional
theory. One of the first to propose it was John Calhoun (Vice-President under
Andrew Jackson). Writing before the Civil War, Calhoun argued that the
power of Congress to amend the Constitution must not “radically change the
character of the Constitution, or the nature of the system”. John C. Calhoun, The
Works of John C. Calhoun, New York: Appelton, 1968, p 301. The debate
reachedits climax during the attempt to include in the Constitution an amend-
ment prohibiting the desecration of the American flag. See for example Jeff
Rosen, ‘Was the Flag Burning Amendment Unconstitutional?’, Yale Law
Journal, 1991, vol 100, p 1073 and Eric A. Isaacson, ‘The Flag Burning Issue: A
Legal Analysis and Comment’, Loyola of Los Angeles Law Review, 1992, vol 23,
p 591. For a critique of this kind of argument, see John R. Vile, ‘The Case
Against Implicit Limits’, in Responding to Imperfection. A defence of the idea of
implicit limits can also be found in William L. Marbury, ‘The Limitations upon
the Amending Power’, Harvard Law Review, 1920, vol 33, p 225: “It may be
safely premised that the power to ‘amend’ the Constitution was not intended
to include the power to destroy it.” See also Carl J. Friedrich, Constitutional
Government and Democracy: Theory and Practice in Europe and America, Boston:
Ginn and Company, 1950, pp 144–145.
29 Ibid., pp 238–239.
30 Ibid., pp 405–406.
31 “We assume the idea of a dualist constitutional democracy found in John Locke:
it distinguishes the people’s constituent power to form, ratify, and amend the
constitution from the ordinary power of legislators and executives in everyday
politics. . .” Ibid., pp 405–406.
32 Freeman, ‘Political Liberalism and the Possibility of a Just Democratic Consti-
tution’, p 662. And this is true even when, according to Rawls in his response to
Habermas, “whether modern liberties are incorporated into the constitution is a
matter to be decided by the constituent power of a democratic people, a familiar
line of constitutional doctrine stemming from George Lawson via Locke”.
Rawls, Political Liberalism, p 414. This seems to suggest that for Rawls, even
when constitution-makers, in the exercise of constituent power, determine what
the constitutional essentials are, they cannot abolish them later through the
exercise of that same power (because any attempt to do so should be struck down
by the courts).
33 Ibid., p 231. One could understand Rawls as adopting the distinction made by
some European and Latin American constitutionalists between pouvoir constituant
originaire and pouvoir constituant derivé. For a brief explanation of this distinction,
see note 57 of this chapter.
34 I do not consider here the possibility of amending the US Constitution through
a Convention called by two-thirds of the state legislatures and ratified by
three-fourths of said legislatures, as this method has never been used and there
is no indication that Rawls was referring to it when writing about Article V. For
a discussion, see Sanford Levinson, Our Undemocratic Constitution: Where the
Constitution Goes Wrong (And How the People can Correct It), New York: Oxford
35 The Southwest Case, 1 BverfGE 14 (1951), in Walter F. Murphy and Joseph
Tanenhaus (eds), Comparative Constitutional Law, New York: St. Martin’s Press,
1977. The German Constitutional Court was approvingly quoting a decision of
the Bavarian Constitutional Court.
36 Lisbon Case, BverfG, 2 BvE 2/08, paras 216–218. Interestingly, in a 2006
decision, the Venezuelan Supreme Court of Justice maintained that the constitu-
ent power was not subject to any limits, except “the rights inherent to each
person that emerge from their human dignity” (los derechos inherentes a la persona
humana y derivados de su propia dignidad). Decision No. 06-0737, Supreme Court
of Justice (Constitutional Chamber).
37 Aristotle, The Politics of Aristotle, Oxford: Oxford University Press, 1962, p 98.
Quoted in Gary Jeffrey Jacobsohn, ‘An Unconstitutional Constitution? A
Comparative Perspective’, International Journal of Constitutional Law, 2006, vol
4(3), p 460.
38 Jacobsohn, ‘An Unconstitutional Constitution?’, p 478.
39 Pedro de Vega, La Reforma Constitucional y la Problemática del Poder Constituyente,
Madrid: Técnos, 1985, p 268. In fact, modern French constitutional theory has
developed the doctrine of ‘constitutional fraud’ (fraude à la Constitution) to iden-
tify the act of using the formal amendment rule in order to create a different
constitutional regime. Ibid., p 291. A relevant distinction between ‘amendment’
and the fundamental transformation of a constitution has been defended by
Walter Murphy. For him, “The word amend comes from the Latin emendere, to
correct. Thus an ‘amendment’ corrects or modifies a system without funda-
mentally changing its nature – that is, an amendment operates within the
boundaries of a constitutional order.” Walter Murphy, Constitutional Democracy:
Creating and Maintaining a Just Political Order, Baltimore: The Johns Hopkins
University Press, 2007, p 506. See also Sotirios A. Barber, On What the Constitu-
tions Means, Baltimore: The Johns Hopkins University Press, 1984, p 43.
40 I examined the doctrine of unconstitutional constitutional amendments in
Germany, India, the United States and Colombia in Joel Colón-Ríos, ‘¿Pueden
Haber Enmiendas Constitucionales Inconstitucionales: Una Breve Mirada al
Derecho Comparado?’, Revista Jurídica Universidad Interamericana de Puerto Rico,
2008, vol 42, p 207. See also Richard Albert, ‘Nonconstitutional Amendments’,
Canadian Journal of Law and Jurisprudence, 2009, vol 22(2); Jacobsohn, ‘An
Unconstitutional Constitution?’
41 See The Klass Case, 30 BVerGE 1 (1970) and The Electronic Eavesdropping
Case, 109 BverfGE 279 (2003). For a more recent discussion, see the Lisbon
Case.
42 In addition to the previously mentioned Southwest Case, see for example Article
117 Case, 3 BverfGE 225 (1953). More generally, see Matthias J. Herdegen,
‘Natural Law, Constitutional Values, and Human Rights’, Human Rights Law
Journal, 1998, vol 19, p 37.
43 Kesavananda Bharti Sripadagalvaru v State of Kerala, 1973 (SUP) SCR 0001.
44 For a discussion, see Rory O’Connel, ‘Guardians of the Constitution: Unconsti-
tutional Constitutional Norms’, Journal of Civil Liberties, 1999, vol 4, p 69.
45 Minerva Mills Ltd v Union of India, AIR 1980 SC 1789.
46 Ibid., 1798.
47 This problem was raised by the parties in the Indian cases discussed above, and
was also mentioned in the earlier case of Golaknath v Punjab, AIR 1967 SC 1643
(decided before the doctrine of the basic structure was developed), where it was
stated: “If it is desired to abridge the Fundamental Rights, the legal method is
that the State must reproduce the power which it has chosen to put under
restraint. Parliament must amend Art 368 to convoke another constituent
assembly, pass a law under item 97 of the List 1 of Schedule 7 to call a constitu-
ent assembly, and then that assembly may be able to abridge or take away the
fundamental rights. Any other method must be regarded as revolutionary.”
48 Constitution of Colombia (1991), Article 376. This provisions states that the
competencies of the constituent assembly may be determined ‘by law’. This is
not necessarily inconsistent with the theory of constituent power, as long as it
is understood that any limits to the assembly’s competencies are to be decided
by the constituent power (who, as the Kompetenz-Kompetenz, can also authorise
the assembly to draft an entirely new constitution without been subject to any
specific limits).
49 Constitution of Colombia (1991), Article 241. Moreover, its Article 379 (which
is part of the Constitution’s amendment rule) stated that proposed constitu-
tional changes could only be declared ‘unconstitutional’ if they violated the
requirements of the established amendment process.
50 The referendum was authorised by Law 796 of 2003.
51 Opinion C-551/03, para 13.
52 Ibid., para 22.
53 Ibid., para 23.
55 The Court also referred to the works of Pedro de Vega, also quoted in Decision
No. 17 of the Supreme Court of Justice of Venezuela, Alf Ross, and Germán
Bidart Campos. De Vega, La Reforma Constitutional; Alf Ross, ‘On Self-Reference
and a Puzzle in Constitutional Law’; Germán Bidart Campos, Historia e Ideología
de la Constitución Argentina, Buenos Aires: Ediar, 1969.
57 Latin American jurists (as their French counterparts) recur to the distinction
between “constituent power proper” (pouvoir constituant originaire or poder con-
stituyente originario) and “constituted constituent power” (pouvoir constituant derivé
and poder constituyente derivado). The former refers to the sovereign power of the
people to create a new constitutional regime; the latter refers to the power to
reform the constitution according to the procedures created by the constituent
subject. See Humberto Nogueira Alcalá, ‘Consideraciones sobre Poder
Constituyente y Reforma de la Constitución en la Teoría y la Práctica Constitu-
cional’, Revista Ius et Praxis, 2009, vol 15(1), p 229; Luis Sánchez Agesta,
Principios de Teoría Política, Madrid: Editora Nacional, 1983; Rodrigo Borja,
Derecho Político y Constitucional, México: Fondo de Cultura Económica, 1991;
Carlos Fayt, Derecho Político, Buenos Aires: Ediciones Ghersi, 1982; Germán
Bidart Campos, Derecho Político, Buenos Aires: Aguilar, 1967.
59 The court was citing approvingly its Opinion C-544/92. Opinion C-551/03,
para 29.
60 Ibid. (Emphasis added.)
61 Ibid., paras 31–32.
62 Ibid., para 33.
63 This attempt to ground the doctrine of constitutional substitution in the literal
words of the Constitution of 1991 (instead of grounding it solely on the theory
of constituent power) has been criticised by some academics. See for example
Gonzálo Ramírez Cleves, ‘Reformas a la Constitución de 1991 y su Control de
Constitucionalidad: Entre Democracia y Demagogia’, Revista Derecho del Estado,
2008, vol 21, p 169.
65 Ibid. Moreover, the court stated that the drafters of the Constitution of 1991
had the option of allowing for the ‘total revision’ of the constitution, like the
Spanish or Swiss Constitutions. This reference, however, is in tension with the
Schmittian conception, which maintains that even in the cases of constitutions
that contemplate their ‘total revision’, the power of constitutional reform is a
constituted, and therefore limited, power. See Schmitt, Constitutional Theory,
p 152.
66 Opinion C-551/03, para 34. Needless to say, this example echoes Schmitt.
68 On this point, see de Vega, La Reforma Constitutional, p 302.
69 Opinion C- 551/03, para 40.
70 Ibid.
71 The court did strike down several aspects of the proposed referendum, including
the requirement of answering ‘yes’ or ‘no’ to a set of disparate issues in one of the
referendum questions (as opposed to being able to vote separately on each issue),
on the basis that it violated the “liberty of the elector”, the introductory notes at
the beginning of each question, on the basis that they tended to promote the
‘yes’ vote, and invalidated one of the questions since it was “alien” to the refer-
endum’s main topic.
72 These decisions include Opinion C-1040/05, Opinion C-970/04, Opinion
C-971/04, Opinion C-1200/03, Opinion C-757/08, Opinion C-588/09 and, more
recently, Opinion C-141/10. For a more detailed discussion of these decisions, see
Gonzalo A. Ramírez Cleves, ‘El Control Material de las Reformas Constitucion-
ales Mediante Acto Legislativo a Partir de la Jurisprudencia Establecida en la
Opinion C-551 de 2003’, Revista Derecho del Estado, 2006, vol 18, p 3.
73 See Opinion C-1040/05, para 7.10.3.
74 However, the Legislative Act that brought these constitutional changes into
existence contained a provision that granted the State Council (Consejo de Estado)
the power to adopt the laws and regulations needed to implement the amend-
ments (in the event that Congress failed to adopt them or if they were declared
unconstitutional). The court considered this provision to confer the State
Council an extraordinary legislative power, one which would not be subject to
political or judicial control. That is, it would create a non-elected extraordinary
(temporary) legislator that would adopt norms binding to all citizens. This,
according to the court, was inconsistent with the principle of constitutional
supremacy and the separation of powers, essential components of the identity of
the Constitution of 1991. Accordingly, it would have the effect of substituting
the constitution with a new one, and therefore, it was an act that lay outside the
scope of the amending power. Ibid., para 7.10.4.3.
75 Opinion C-141/10, para 1.3.
76 Supreme Court of Justice of Venezuela (Constitutional Chamber), Decision
No. 53, 3 February 2009.
77 Decision No. 53, Section V.
78 As this shows, procedure and substance are not always easily separable from each
other: it is precisely because of the substance of the amendment that a special
procedure is required. See William F. Harris II, The Interpretable Constitution,
Baltimore: The Johns Hopkins University Press, 1993, p 175.
79 On the discomfort with democracy, see Roberto Mangabeira Unger, What
Should Legal Analysis Become, London: Verso, 1996. See also Jacques Ranciêre,
Hatred of Democracy, London: Verso 2006.
80 In his study of Article V of the US Constitution, Lester B. Orfield provided a
list of more than 25 topics that had been identified as outside the scope of the
amending power by different authors and lawyers during the first part of the
twentieth century in the United States (e.g., the establishment of a monarchy,
the creation of nobility titles, an amendment creating special taxes for certain
states). See Lester B. Orfield, The Amending of the Federal Constitution, Ann Arbor:
University of Michigan, 1942, pp 87–88, n 12.
81 See Russell, Constitutional Odyssey, p 55.
82 Constitution Act, 1982, 41(a)–(e), Schedule B to the Canada Act 1982 (UK),
1982, c 11. The provisions of the Charter of Rights and Freedoms (right to vote,
mobility rights and others) that are put out of the scope of the legislative over-
ride (Section 33) and thus give final decision-making power to the courts over
certain topics (in the absence of an amendment) also point towards certain
constitutional principles that are considered fundamental.
83 Thoburn v Sunderland City Council [2003] QB 151 at [62]. For critiques of these
moves towards fundamental principles or to a ‘common law constitution’ that
limit parliamentary sovereignty in the United Kingdom, see Adam Tomkins,
‘The Rule of Law in Blair’s Britain’, University of Queensland Law Journal, 2007,
vol 26, p 225 and Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary
Debates, Cambridge: Cambridge University Press, 2010.
84 Select Committee on the Constitution, House of Lords, 15th Report of Session
2010–12, paras 13, 101.
85 Taylor v New Zealand Poultry Board [1984] 1 NZLR 394, 398 (CA); Sir Robin
Cooke, ‘Fundamentals’, New Zealand Law Journal, 1988, 164. As mentioned in
Chapter 3, New Zealand has attempted to limit its own power to make certain
fundamental constitutional changes through simple majority rule: Section
268(2) of the Electoral Act entrenched certain provisions of the Electoral
Act 1993 and of the Constitution Act 1986 (provisions that, among other
things, protect the right to vote and establish the term of Parliament), and
established that they can only be repealed or amended by 75 per cent of all the
members of the House of Representatives, or by a majority of the electors in a
referendum.
86 Constitution of Venezuela (1999), Article 350.
87 De Vega, La Reforma Constitucional, p 143.
88 A similar approach is followed by Article 74 of the South African Constitution,
which involve special requirements when an amendment seeks to alter the
fundamental principles contained in Section 1.
89 De Vega, La Reforma Constitucional.
90 Many constitutions distinguish between reform, revision and mere amendments
(for example, reforms and revisions tend to be associated with general
constitutional changes that affect different parts of the constitution, and amend-
ments about discrete changes to individual constitutional clauses) and require
different procedures for each type of change. This distinction is common in
Latin American Constitutions (see for example Title IX of the Constitution of
Venezuela, which establishes a different set of procedures for ‘amendments’,
‘reforms’ and for the transformation of the state or the adoption of a new
constitution).
91 The limits of the referendum as a mechanism of popular participation were
discussed in Chapter 4.
92 See for example Murphy, Constitutional Democracy: Creating and Maintaining a
Just Political Order.
93 For the idea of the Westminster Parliament as a constituent assembly in
permanent session, see Alexis de Tocqueville, Democracy in America, New York:
New American Library, 1956, p 74.
94 For a history and discussion of the identification of ‘Parliament’ and ‘people’ in
British constitutionalism, see Edmund S. Morgan, Inventing the People: The Rise of
Popular Sovereignty in England and America, New York: Norton, 1988.
95 “. . . Notwithstanding anything in this Constitution, Parliament may in exercise
of its constituent power amend by way of addition, variation or repeal any provi-
sion of this Constitution in accordance with the procedure laid down in this
article. . .” In fact, the Supreme Court of India adopted the theory of implicit
limits to constitutional reform in order to control the power of amendment in a
relatively flexible constitution (see Kesavananda Bharti Sripadagalvaru v State of
Kerala). Insisting in its ‘unlimited constituent power’, Parliament adopted the
Forty-second Amendment in 1976, stating in part: “No amendment. . .shall be
called into question in any court on any ground. . .For the removal of doubts, it
is hereby declared that there shall be no limitation whatever on the constituent
power of Parliament to amend by way of addition, variation or repeal the provi-
sions of this Constitution under this article.” This provision was subsequently
invalidated in Minerva Mills Ltd v Union of India, supra note 45.
96 See Andreas Kalyvas, ‘Book Review’, Constellations, 2001, vol 8(3) (2001), p 414.
8 The beginnings of weak
constitutionalism
Constituent power should be understood as the ‘missing link’ in the debate

about constitutionalism and democracy. After all, that debate is, in the last
instance, about the ways in which constitutionalism appears to negate democ-
racy at the level of the fundamental laws; about the ways it might hinder the
people’s faculty of making and remaking constitutions. It is true that consti-
tutionalism can be made consistent with the idea that the authority of a
constitution is derived from the sovereign people, and that the demos has (at
least theoretically) the right to have any constitution it wants. The problem,
as we saw in Chapter 2, is that after a constitution is in place, constitutional-
ism’s main function (that of limiting political power) runs counter to the idea
of creating opportunities for ordinary citizens to make episodical appearances
and engage in important constitutional transformations. In other words, as a
matter of actual political practice, the people’s ultimate political power is also
seen as the object of constitutionalism’s limiting role.1 What constituent
power does is point to some instances in which a departure from constitution-
alism is warranted; episodes in which the citizenry exercises its democratic
right to (re)create the constitutional regime under which it lives.
A democratic constitutional theory, like the one that this book has been
attempting to advance, would thus have an important place for the concept of
constituent power. It would defend the idea that a constitutional regime
should provide an opening for constituent power to manifest when important
constitutional transformations are needed and would make significant demands
on constitutional regimes. It would require a set of political arrangements
according to which episodes of fundamental constitutional change only take
place through highly participatory procedures, and a constitution that gives
citizens the means to activate those procedures. That is to say, a democratic
constitutional theory would see citizens as the potential authors of a new or
importantly transformed constitutional regime, and propose a set of constitu-
tional forms that allow them to engage in constituent activity. A constitution
consistent with such a theory would conform to the conception of democratic
legitimacy defended in Chapter 6; it would involve a radical transformation of
the ideal of constitutionalism and an important re-examination of the current
‘balance’ between constitutionalism and democracy. In short, a democratically
The beginnings of weak constitutionalism 153
legitimate constitutional regime would only be consistent with a weak consti-
tutionalism.
This chapter will develop this alternative conception of constitutionalism
and consider its institutional implications. We begin by exploring the
main characteristics of weak constitutionalism. As will be seen, this is the
conception of constitutionalism implicit in the previous discussions about
democracy, constituent power and democratic legitimacy. We then consider
the reasons why a constitutional regime based on a weak form of constitution-
alism would require fundamental constitutional changes to take place through
extraordinary bodies (as opposed to the ordinary institutions of government,
such as legislatures). Special emphasis will be given to the Constituent
Assembly (CA) convened ‘from below’, present in some Latin American
constitutions. This mechanism, it will be argued, may facilitate the exercise
of constituent power when the constitution is to be transformed in important
ways, and a constitution that contains it would have a strong claim to demo-
cratic legitimacy. Finally, the chapter maintains that even though the CA
convened ‘from below’ is normally associated with written and supreme
constitutions, it has a place in constitutional regimes based on an unwritten
constitution. Although the adoption of such a mechanism would have
important consequences for the doctrine of parliamentary sovereignty, both
written and unwritten constitutions may operate under a weak form of
constitutionalism and can thus aspire to democratic legitimacy.
Weak constitutionalism
Weak constitutionalism seeks to alter the traditional balance between consti-
tutionalism and democracy in several ways. First, unlike the conception of
constitutionalism under which most constitutional regimes operate, weak
constitutionalism does not maintain the precedence of the constitutional
forms over the constituent power of the people. It rests on the idea that there
is a permanent tension between constitutional forms and constituent power,
between constitutionalism and democracy. Instead of privileging the
supremacy of the former by adopting a constitution that is difficult or impos-
sible to change, it seeks to leave the door open for the future re-emergence of
constituent power. It thus rests on a radical rejection of traditional constitu-
tionalism’s aspiration to the permanency of the constitutional regime. In
proceeding in this way, weak constitutionalism does not seek to resolve the
tension between constitutionalism and democracy.
On the contrary, weak constitutionalism recognises this tension as an inev-
itable consequence of having a constitution and makes it even more obvious
by giving citizens the institutional means to act together to take precedence
over the constitutional text, even if only episodically.2 Weak constitution-
alism does not see constitutional change as a “dramatic and threatening
occurrence that, given its nature, should be avoided by all means or at least
postponed at much as possible” (as the Venezuelan Supreme Court of Justice
154 The beginnings of weak constitutionalism
once wrote about the prevailing attitude to constitutional reform),3 but as
part of a continuing effort by the citizenry to construct a more just constitu-
tional regime.
Second, weak constitutionalism rests on a distinction between the two
dimensions of democracy and, instead of seeing democracy exhausted at the
level of daily governance, aspires to the realisation of democracy at the level of
the fundamental laws. When an important constitutional transformation is
needed, it mandates that changes to the constitution are made through the
kind of processes present during a democratic constitution-making episode.
Weak constitutionalism assumes that there is an important aspect of the
democratic ideal that cannot be exhausted or constrained by a constitution, a
dimension of democracy that is episodical by nature and that always escapes
the very constitutional forms it might seek to transform. The issue, of course,
is not about a form of constitutionalism that requires the direct vote of the
electorate every time a constitutional change is to become valid. Democracy
at the level of the fundamental laws is not simply about a process in which
experts draft a constitution and then submit it to a ‘yes’ or ‘no’ vote in a
referendum (which does not necessarily promote discussion and debate among
citizens).4 Instead, it requires mechanisms through which citizens are allowed
to participate in proposing, deliberating and deciding upon the content of the
constitution.
Third, weak constitutionalism mandates a constitutional regime consistent
with the basic principles of democratic openness and popular participation. It
is a form of constitutionalism that, instead of insisting on the preservation of
the constitutional forms, seeks to create the conditions suitable for their trans-
formation. While some of those forms might be constitutive of the citizenry’s
ability to call into question and alter the constitutional regime (as in the case
of basic political rights), weak constitutionalism does not attempt to put
limits on the constituent power. It rests instead on the assumption that a
democratic people, acting through inclusive and participatory procedures,
would not seek to constrain their future ability to participate in the creation
or re-creation of their constitution. In this respect, weak constitutionalism
reinforces the idea that a constitution’s ‘openness’ must always be of a demo-
cratic nature, and should be accessible to the citizenry acting through proce-
dures that come as close as possible to the ideal direct-assembly democracy.
Fourth – and this feature in a way encapsulates all the others – weak consti-
tutionalism does not see constituent power as a threat. This means two
different things. As noted above, it means that weak constitutionalism does
not look at fundamental constitutional change with suspicion, but as providing
an opportunity to improve the established constitutional regime, extend its
protections and come closer to a society of equals. Of course, this is not to say
that every exercise of constituent power will result in a more just and inclusive
constitution. As Habermas has noted, an open constitutional regime is not
immune to “contingent interruptions and historical regressions, [but] can be
understood in the long run as a self-correcting learning process”.5 It also
means that weak constitutionalism rejects the Lockean view of the exercise of
constituent power as restricted to situations of extreme governmental abuse or
as a one-time event that is forever channelled through the ordinary process of
constitutional reform. In contrast, it accepts the Sieyesean and Schmittian
conceptions of constituent power as not being absorbed by the constitution-
making act and as susceptible to being exercised at any moment after a consti-
tution is in place. In this respect, it is a conception of constitutionalism that
seeks to comply with the basic condition of democratic legitimacy: it leaves the
door open for the future exercise of constituent power, for futures episodes of
democratic re-constitution.
Fifth, weak constitutionalism does not approach all constitutional changes
in the same way. It assumes that some changes are more fundamental than
others and that some apparently partial modifications of the constitution may
amount to the creation of a new constitutional regime. Accordingly, weak
constitutionalism is highly consistent with the idea, considered in Chapter 7,
of implicit limits to constitutional reform (even though, as we will see later,
it would not necessarily attribute to judges the power to separate the funda-
mental from the non-fundamental). It not only recognises that the constitu-
tion should be open to change, but also that the procedures to be used for its
transformation are related in important ways to the nature of the changes at
issue. The more fundamental the change, the more likely it amounts to a
re-constitution and the more necessary it is for it to take place through a
highly participatory procedure. If a constitutional regime is altered in funda-
mental ways through the ordinary institutions of government, its democratic
legitimacy would immediately be called into question. This is partly why
weak constitutionalism comes accompanied by the idea that important consti-
tutional transformations should not be the work of ordinary institutions.
These institutions are designed to operate at the level of daily governance,
where intense episodes of popular participation are not always possible. Weak
constitutionalism is thus not consistent with a constitution that, just like
ordinary law, can be changed by democratic majorities if the term ‘democratic
majorities’ simply refers to a majority of state officials sitting in a legislature.
Sixth, weak constitutionalism does not see citizens simply as human beings
with rights who participate in politics through the election of officials every
few years, but as those who are allowed to take part in the (re)positing of the
norms that govern the state. In other words, a citizen is someone who partici-
pates in the democratic legitimation of the constitutional regime and knows
that, despite all the imperfections of such an order, it can be changed. Not
only is this conception of the citizen more consistent with democracy, but it
might also result in citizens developing a sense of identification with the
constitutional regime, seeing the constitution as theirs – as their work-in-
progress – and not simply as the embodiment of the will of a mysterious
‘People’ or the product of judicial interpretation.6 As will be argued in the
next two chapters, when important constitutional transformations are needed,
this active citizenry engages in different types of informal (and sometimes
even ’illegal’) political practices in order to create the political climate
necessary for constituent power to be activated.
Finally, a constitutional regime based on either a written or unwritten
constitution can operate under a weak form of constitutionalism. It is not the
‘writtenness’ or ‘unwrittenness’ of the constitution that matters (or the fact
that it can or cannot be ordinarily amended in the same way as an ordinary
law)7 but the way in which it approaches constituent power. However, as we
will see below, weak constitutionalism would require a partial reconstruction
of the doctrine of parliamentary sovereignty.
Exercising constituent power or weak

constitutionalism’s mechanisms
As we have seen in previous chapters, the amendment processes of most
written constitutions seek to make constitutional change difficult and
unlikely. While unwritten constitutions normally fare better in this respect,
they, just as their written counterparts, allow fundamental constitutional
changes to occur without any significant degree of public involvement. Even
those constitutions that require a government-initiated referendum before
some (or all) constitutional amendments come into effect, fail to provide ordi-
nary citizens with the means to propose, deliberate and decide upon the
content of the fundamental laws. This traditional approach to constitutional
reform is a reflection of, on the one hand, constitutionalism’s aspiration to
permanency and, on the other, constitutionalism’s fear of constitutional
change (particularly if it involves ordinary people meddling with the content
of the constitution). In contrast, weak constitutionalism mandates that a consti-
tution remains open to change and that fundamental constitutional transfor-
mations take place through the most participatory procedures possible; in
other words, through an exercise of the people’s constituent power.
But what could it mean for the people to exercise constituent power? Previous
chapters of this book have suggested that an extraordinary assembly, elected
and convened with the specific purpose of drafting a new constitution, could
be understood as facilitating the exercise of constituent power. Nevertheless,
it is clear that such an assembly, just as an ordinary legislature, is a repre-
sentative body composed of delegates elected by the people, but it is not the
people.8 In fact, the very idea of the people ‘giving itself a constitution through
the exercise of constituent power’ has been challenged by many constitutional
and political theorists. It has been argued, for example, that this position is
based “on an unacceptable political mythology”, and that any act of ‘the
people’ (a people that is only capable of action through representation) is
determined by prior electoral and procedural rules that must be given to the
citizenry by someone else.9 In what sense, then, can it be argued that an
extraordinary assembly may be used to facilitate the exercise of constituent
power by the people? After all, the members of a contemporary society cannot
spontaneously come together and give themselves a new constitution and so,
in that sense, there is no such thing as an exercise of constituent power by the
people, at least not in the modern world.
However, there are some rules and procedures that might come closer, even
if just a little closer, to the idea of a citizenry giving itself a constitution (even
if these rules and procedures were not themselves adopted through a highly
participatory process). For example, an elected CA activated by a popular
referendum, for the specific and sole purpose of deliberating on the creation of
a new constitution, might be closer (although, as we will see shortly, not as
close as possible) to an exercise of the people’s constituent power than an ordi-
nary legislature engaging in profound constitutional changes. The idea that
extraordinary assemblies are somehow closer to the people than the ordinary
legislative body is, of course, nothing new; indeed, it was present in the great
revolutions of the seventeenth and eighteenth centuries. The ‘higher’ nature
of extraordinary assemblies was associated with the Lockean idea that after a
long train of abuses, the people had the right to create a new form of
government and that, in order to do so, a special assembly was needed. It was
also connected with the view that a legislature is elected with the purpose
of adopting ordinary laws, not to engage in profound transformations of
the juridical order under which it operates. It was thus maintained in
seventeenth-century England that the right to create a new government could
only be exercised “by such Persons only as are appointed by the Society for
that purpose”.10
Consistent with that view, the Convention Parliament that met in 1689
without having been summoned by James II and which invited William and
Mary to reign jointly – while seen by many as an inferior and legally irregular
body – was depicted by some “as something greater, and of greater power than
Parliament”.11 Although composed of the Commons and Lords who would
usually sit in Parliament, the Convention Parliament was elected specifically
to bring the country to a settlement regarding the monarchy and presented
William and Mary with a Bill of Rights that sought to limit the powers of the
Crown.12 Not surprisingly, years later, James Otis suggested that the
Convention Parliament of 1689 had “created the government anew” (i.e.,
engaged in an act of re-constitution, according to the terminology adopted in
this book) and in that sense was something more than an ordinary parlia-
ment.13 Nevertheless, it was in eighteenth-century North America where the
distinction between an ordinary legislature and a constitution-making body
was fully developed. Even though, as in England, extraordinary assemblies
were originally seen as legally defective and therefore inferior to ordinary
legislatures, they were to become closely associated with a people acting
outside the normal institutions of government, with the purpose of trans-
forming them.
The main idea was that the ordinary legislature had no mandate to meddle
with the ‘form of government’ and, at the same time, to render a form of
government unalterable by an ordinary legislature, a body with a specific
mandate from the people was needed. In that vein, Jefferson’s Notes on the State
of Virginia stated “that to render a form of government unalterable by ordinary
acts of assembly, the people must delegate persons with special powers”.14
Similarly, a Pennsylvania pamphleteer maintained in 1776 that: “Legislative
bodies of men [have no power to destroy or create] the authority they sit by.”
Otherwise, he continued, “every legislative body would have the power of
suppressing a constitution at will; it is an act which can be done to them, but
cannot be done by them”.15 These authors believed that Conventions, as extraor-
dinary constitution-making bodies, were “in a special manner the epitome of
the People”, and could thus be used to create and destroy constitutions at
will.16 It has been suggested that by 1780 in Massachusetts, “the theory of
Revolutionary constitutionalism required that the body charged with framing
the constitution be a special assembly, chosen for that sole purpose, rather
than an ordinary legislature”.17
Not surprisingly, in the New York Convention of 1821, a delegate felt
confident enough to reply to the claim that “we were not sent here to deprive
any portion of the community of their vested rights”, with a defiant: “Sir, the
people are here themselves. They are present by their delegates. No restriction
limits our proceedings. What are these vested rights? Sir, we are standing upon
the foundations of society. The elements of government are scattered around
us.”18 In a slightly more belligerent tone, Onslow Peters claimed during the
Illinois Convention of 1847 that: “We are . . . the sovereignty of the State.
We are what the people of the State would be, if they were congregated here
in one mass meeting.”19 “We are,” he added “what Louis XIV said he was:
‘We are the State.’ We can trample the Constitution under our feet as waste
paper, and no one can call us to account, save the people.”20
The idea that important constitutional changes must take place through
extraordinary bodies, specifically elected for that purpose, did not survive for
long. In the United States, the Federal Constitution of 1787, while techni-
cally contemplating a role for special conventions (both at state and national
levels), gave the ordinary institutions of government an unlimited power of
constitutional reform: the power to create the government anew. In the United
Kingdom, the triumph of the doctrine of parliamentary sovereignty came
accompanied with a rejection of any legally relevant distinction between the
people and the ordinary legislature (a distinction vehemently defended by the
Levellers in the mid-seventeenth century).21
In a sense, weak constitutionalism is an invitation to return to that aban-
doned tradition but, as we will see below, with a renewed democratic impetus.
Before moving to that discussion, however, it is necessary to consider in more
detail the idea of the superiority of special conventions over ordinary legisla-
tures, as well as to supplement it with additional arguments. As noted above,
English and North American supporters of special conventions stressed the
fact that legislatures are not elected for the adoption of new constitutions. Put
in the terminology presented in Chapter 3 of this book, legislatures are elected
to engage in the activity of democratic governance, not in the exercise of
democracy at the level of the fundamental laws.
There is something in that argument, but it certainly cannot be the only
reason for rejecting legislatures as potential constitution-making bodies. For
instance, it is not clear why fundamental constitutional changes cannot be
adopted by an ordinary legislature and then be subject to a popular vote. After
all, legislators are directly elected, the electoral system is (ideally) structured
in such a way that the resulting legislative assembly represents different
sectors of society and legislators can be held politically accountable. If the
concern is simply that the legislature is not normally authorised to engage in
fundamental constitutional changes, there could be a special election granting
it that power.22
However, there are additional reasons why a CA is a superior mechanism of
fundamental constitutional change. To begin with, a legislature might be one
of the institutions that citizens intend to alter, and giving ordinary repre-
sentatives this task would make the adoption of the changes less likely (and
would also put legislators in a position of being judges in their own case).23
Moreover, a CA comprises delegates who, unlike ordinary representatives, are
not subject to re-election (since, as explained in Chapter 6, the assembly ceases
to exist as soon as the constitution is adopted). Although this might be seen
as a negative feature of a CA, in the sense that its delegates cannot be held
accountable for their mistakes, it may be conceived as an advantage from the
perspective of democratic openness.24 Precisely because they do not have to
worry about what will happen in the next electoral campaign, they will feel
free to propose and support novel measures beneficial to society at large or to
call into question long-established institutions and principles, even against
the opposition of small but powerful sectors of society. As Ruth Gavison has
expressed: “If the members of the assembly are people who are not directly
involved in day-to-day politics, it is likely that their judgment will be less
clouded by their own immediate political interests.”25 Delegates to the CA,
however, will have to take seriously what they perceive to be the ‘will of the
people’ (as well as the reasons for activating this extraordinary constitution-
making method), as they know that their proposals will have to be ratified in
a referendum before having any legal effect.
Closely connected to the previous points is the fact that a legislature is a
body elected and designed with the purpose of dealing with the issues a polity
faces on a day-to-day basis (e.g., how to spend government funds or whether
certain conduct should be decriminalised). As an institution of democratic
governance, it is the natural operating ground of traditional political parties
and different sorts of interest groups that aim at influencing public policy. A
CA, on the contrary, is concerned with fundamental constitutional change: it
is called to operate during exceptional ‘political moments’, to use Wolin’s
formulation.26 Its function is to deliberate about the content of the constitu-
tion in order to create a constitutional regime that improves the lives of
citizens. For that reason, it has the potential to give voice to a whole new
universe of participants, attracting the involvement of individuals and groups
not traditionally engaged in political activity. In other words, a CA makes
clear that the country is going through important constitutional transforma-
tions: a period of higher law-making that differs from day-to-day politics and
in which all citizens are called to deliberate and decide upon the future of the
fundamental laws. Accordingly, it is likely to be more consistent with the
principle of popular participation than an ordinary legislative assembly
invested with constitution-making faculties.
The previous reasons, in my view, provide strong support for the idea that
a CA is a superior mechanism of fundamental constitutional change than an
ordinary legislature. In other words, that the exercise of constituent power
should take place through an extraordinary body, elected for the purpose of
engaging in an act of constitution-making in a way that tends to realise the
principles of democratic openness and popular participation. But this is, of
course, insufficient from a democratic perspective. That is to say, it is not
enough to have an extraordinary assembly authorised to adopt a new constitu-
tion (and, accordingly, not subject to substantive limits found in the existing
juridical order): the process that leads to the convocation of the assembly, the
drafting of the constitution, and the decision of whether to accept or not its
proposals must be as open and participatory as possible. What is required, then,
is a process of fundamental constitutional change that can be correctly
understood as an exercise of constituent power. As maintained in Chapter 6,
the possibility of such a process is a necessary condition for the democratic
legitimacy of the constitutional regime.
Of constituent assemblies convened from below

As Dietrich Conrad once expressed, the theory constituent power, has “always
denoted not merely the constitution-making function somehow attributed to the
people, but direct authorship of the people”.27 This is very different, he added,
from saying that all public authority derives from the people. That is to say,
constituent power requires “a distinct and more directly creative influence in the
institution of all other authority. Unless this essential feature can be retained and
more clearly brought out, we had better discard the concept as empty, misguiding
rhetoric”.28 This is why not every extraordinary constitution-making body,
even if it succeeds in adopting a constitution and has the support of popular
majorities, is a proper mechanism for the exercise of constituent power.
Thus, while a constitutional regime that allows for fundamental constitu-
tional change to take place through a CA can potentially be consistent with
weak constitutionalism and meet the basic condition of democratic legiti-
macy, all depends on whether the degree of openness and popular participa-
tion in the constitution-making process (before the assembly is convened,
during its deliberations and when the constitution is ratified) would allow
citizens to see themselves as the actual authors of the constitution. In what
follows, I consider the CA convened ‘from below’, currently present in several
Latin American constitutions. I will also explore the ways in which such a
mechanism could be made more democratic.
The CA convened from below can be distinguished from the most common
type of extraordinary constitution-making body contained in the amendment
rules of some constitutions. Similar to the English and American conventions
(but authorised by the established constitutional order),29 this (more common)
mechanism consists of an extraordinary assembly comprising delegates with
the mandate of engaging in the re-constitution of the juridical order and
convened by ordinary government (usually by the legislature). The
Constitutional Convention contemplated by Article V of the US Constitution
(which was explored in some detail in Chapter 4) is an example of this type of
assembly and serves to expose its major limitations: the initiative to convene
it is placed exclusively in government, it is sometimes extremely difficult to
convene and it does not involve any type of direct popular participation.
A more democratic variant of the CA convened by the legislature is present
in the constitutions of Nicaragua and Colombia. Article 193 of the Constitution
of Nicaragua (1987) attributes the National Assembly with the initiative to
call for the popular election of a CA invested with the power to create a new
constitution. Similarly, Article 376 of the Constitution of Colombia (1991)
gives a simple majority of both houses of Congress the power to trigger a
binding referendum asking the electorate whether they wish to convene a CA.
Because it is convened by the government and not by the electorate, this kind
of assembly only guarantees the mere possibility of constitutional remaking
through an extraordinary and elected body.
In other words, it provides an opening for an unlimited constitution-
making power to be exercised, but not a democratic opening, not an ‘openness’
always accessible to the citizenry. Moreover, the fact that this modality of the
CA is convened by the ordinary legislature comes accompanied by at least two
additional difficulties. First, it might allow a legislature that is determined to
alter the constitution in order to extend governmental powers to convene a
CA in the absence of genuine popular support for constitutional change. (This
could happen even in a context where a referendum is required in order for the
assembly to be convened: as I suggested in Chapter 4, referendums are always
susceptible to different forms of manipulation.) Second, it would give the
ordinary institutions of government the (only) key to opening the door for
important constitutional transformations. That is, the legislature could reject
a popular claim for a CA even in times of heightened popular mobilisation.
The CA convened ‘from below’, triggered at the initiative of the citizenry as
opposed to that of the legislature, is thus a democratically superior mecha-
nism. It attributes to the people (as the mythical, extra-legal founders of the
constitution)30 the faculty of re-activating their constituent power and
becoming the authors of a radically transformed constitutional regime.
This mechanism is about recognising a power superior to the constitution
and giving citizens, acting outside the ordinary institutions of government,
the institutional means for exercising it. The convocation of such an assembly
could be initiated by the collection of a number of signatures, ranging from
10 to 20 per cent of the electorate.31 After the required number of signatures
is collected, a referendum would take place in which the entire citizenry has
the opportunity to decide whether the assembly is convened. If the majority
votes in the affirmative (there could be a requirement of minimum participa-
tion for the result to be binding), the election of delegates would take place.
From then on, the assembly would deliberate as a sovereign body, inde-
pendent of the ordinary (or constituted) powers of government, and would
operate according to its own rules. It would be authorised to replace the
existing constitutional regime and create an entirely new one. Its proposals, of
course, would have to be ratified by the electorate in an additional referendum
in order to enter into effect.32 This is, in fact, the way in which the constitu-
tions of Venezuela,33 Ecuador34 and Bolivia conceive of this extraordinary
body. The case of the Bolivian Constitution (2009) is the most interesting as
its Article 411 not only attributes to ordinary citizens the power to convene a
CA, but – in a Schmittian fashion – specifically states that fundamental
constitutional transformations must be adopted through this kind of body.
This provision maintains that the “total reform of the Constitution, or
those modifications that affect its fundamental principles, its recognised
rights, duties and guarantees, or the supremacy of the Constitution and the
process of constitutional reform, will take place through a sovereign
Constituent Assembly, activated by popular will through a referendum”. It
not only provides the executive and the Plurinational Assembly with the
initiative to trigger the referendum, but it also allows it to be “triggered by
popular initiative, by the signatures of at least twenty percent of the elec-
torate”. Consistent with the Schmittian theory of constituent power, Article
411 also states: “The Constituent Assembly will auto-regulate itself on all
matters. The entering into force of the reform will require popular ratification
through referendum.”35
As the reader will note, this provision contains an indirect reference to the
distinction (discussed in Chapter 7) between ordinary and fundamental
constitutional change. It also assumes that constitutional changes of a funda-
mental nature should not take place through the constituted process of consti-
tutional reform (it is important to remember here that the Bolivian
Constitution, as well as the constitutions of Venezuela and Ecuador, also
contain an ordinary amendment process that takes place mainly through the
actions of the legislature), but through a mechanism that facilitates the exer-
cise of constituent power. This is why Article 411 refers to the CA as ‘sover-
eign’, and attributes it with the power to auto-regulate on all matters.
Interestingly, this contrasts with the law that provided for the convocation
of the CA that drafted the Constitution of 2009. Adopted according to Article
232 of the previous Constitution of Bolivia (1967, as amended), that law
required that the decisions of the (government-initiated) CA had to be made
by a two-thirds majority. Although the assembly that resulted from this
process attempted to assert its constituent character, insisting that it was not
subject to any form of positive law, in the end it decided, by and large, to
abide by the supermajority requirements. However, as can be seen, with the
adoption of Article 411, the delegates to the CA were at pains to ensure that
any future assembly would be considered a ‘constituent body’ with the power
to adopt its own rules and to decide about its internal decision-making
process.36 In other words, instead of creating an amendment rule that perma-
nently closed the political terrain in which the constituent subject operates (as
most liberal constitutions do), they decided to leave the door open for the
future exercise of constituent power.
As mentioned above, according to Article 411 of the Bolivian Constitution,
the initiative to convene the CA is put in the (non-exclusive) hands of the citi-
zenry. The fact that the executive and the ordinary legislature also possess the
power of triggering the referendum that would ask the electorate whether they
wish to convene the assembly is not necessarily problematic from the perspec-
tive of democratic legitimacy. Certainly, such a provision may be open to
abuse and is subject to some of the criticisms posed above to the CA convened
by the legislature. However, there might be highly exceptional situations in
which the need for an important constitutional transformation is urgent and
clearly supported by the great majority of a mobilised population, and in
which collecting signatures would become an expensive formality. Moreover,
as long as the constitution is open to important transformation through highly
participatory procedures, the basic condition of democratic legitimacy would
be met. This does not mean, however, that the previously cited Article 411
should be taken as providing for the ideal CA. Despite its superiority over the
amendment rules of most constitutions, there are ways of increasing its parti-
cipatory character beyond the specifications of that provision.
The principle of popular participation is not exhausted in a popular initia-
tive to convene a CA: it also makes important demands with respect to the
way in which the delegates to the assembly are elected, as well as to the role
non-delegates can play in the deliberation about the new or importantly
transformed constitution. First, because a CA should be broadly representa-
tive, the electoral system used to elect its delegates should promote the ability
of different minorities and social movements to gain seats in the assembly
(this would likely be achieved with some form of proportional representa-
tion).37 Moreover, the threshold for becoming a delegate should be as low as
possible in order to allow the greatest amount of delegates practically feasible,
thus closing the distance between the citizenry and the assembly.38 In addi-
tion to adopting a system of proportional representation, the entire country
should be designated a single electoral district because this is a good way of
ensuring that all citizens are properly represented, as individuals and groups
with different views about the constitution might be found anywhere in a
country (in order to provide representation to marginalised groups, which in
some cases might be indigenous peoples, a number of reserved seats might be
created).39 Another alternative, which would greatly increase the possibilities
of ordinary citizens becoming delegates would be to replace the election of
delegates with a process of random selection (similar to the one used in several
countries for selecting members to citizen juries).40
Second, and as has been the practice in some CAs, current state officials
should not be allowed to sit as delegates, and those who sit as delegates should
not be allowed to run for office in the next regular elections.41 These rules
would increase the possibility for ordinary citizens to become delegates, and in
that respect would provide the assembly with an additional ‘popular’ char-
acter. Moreover, it would add a degree of transparency to the process, as those
who deliberate about the form and powers of the new constitutional regime
will not be exercising those powers in the near future. Third, the ability to
make proposals about the content of the new constitution should not be
limited to the assembly’s delegates. Not only should non-delegates be able to
submit proposals, but there could be a process in place according to which, if
a proposal is favoured by a certain number of non-delegates, members of the
CA would be bound to deliberate on the desirability of its adoption (and, if the
assembly rejects it, there could even be the possibility of triggering a special
election in which the entire citizenry would consider the proposal at issue).
Finally, there is no reason why the deliberation about the content of the
new constitution should only formally take place at a ‘national’ CA. Prior to
the election or selection of the delegates, there could be a number of smaller,
extraordinary assemblies (organised geographically or thematically) that
would be open to the public, and would deliberate about the need to adopt a
new constitution or radically transform the existing one, as well as about its
potential content. These assemblies would the power to present formal recom-
mendations to the CA, which would have to be considered by the latter.
When triggered by the citizens themselves, a CA would facilitate the exer-
cise of constituent power and come very close to embodying the principles of
democratic openness and popular participation. On the one hand, as a reposi-
tory of the constituent power, the CA has unlimited competencies42 and can
make any change in the constitutional regime, no matter how fundamental.
It is true that it could result in the abolition of democracy (and of the rights
and institutions that are necessary for any democratic exercise) and in the
alteration of the very amendment formula that provides for its convocation,
but if it does, it would destroy its very democratic legitimacy, together with
that of the constitutional regime. On the other hand, and unlike the CA
convened exclusively by the legislature, it recognises the citizenry as the
protagonist of important constitutional transformations from the beginning
to the end of the process. After the initial stage of the process begins, the
electorate can reject the convocation of the CA by a simple majority in a
referendum, or it can reject the proposed constitution in the ratificatory refer-
endum at the end, but the public discussion about the future of the
constitutional regime that can take place around these exercises would be by
itself a valuable democratic event.
A constitutional regime that grants the citizenry the power to convene a
CA even against the will of government officials would certainly have
a stronger claim to democratic legitimacy than a system that leaves
fundamental constitutional change in the hands of the ordinary political
institutions. This mechanism combines institutions of direct (collection of
signatures, referendums) and representative (the assembly) democracy; of all
the other methods of constitutional change, it has a better chance of maxim-
ising popular participation. Of course, such a mechanism is not likely to be
used frequently and it has never been used in the few constitutional regimes
that recognise it. In fact, frequently resorting to the convention of a CA (in
any of its variants) could be an indication of a profound political problem
rather than the symptom of an active and lively democracy. What democratic
legitimacy requires is not a constitutional regime that is constantly altered in
fundamental ways through highly participatory procedures, but one that may
be altered in that way. Now, at the beginning of this chapter, I maintained
that weak constitutionalism could be consistent with an unwritten constitu-
tion, yet the type of mechanism described above – the CA convened ‘from
below’ – seems to be a creature of written and supreme fundamental laws.
Although that is correct as a matter of actual political practice, it does not
have to be that way.
Constituent assemblies and unwritten constitutions

I maintained in Chapter 6 that democratic legitimacy requires that funda-
mental constitutional changes comply with the principles of popular partici-
pation and democratic openness. That is to say, not all constitutional changes
must take place through highly participatory procedures, only those of a
fundamental character.43 The fact that in the typical unwritten constitution
most constitutional changes may take place through the ordinary law-making
process is, by itself, not a problem. In the context of such a constitution, what
would be needed is a system according to which fundamental constitutional
changes take place through an extraordinary and participatory body (similar
to the CA convened ‘from below’ described earlier).44 In order for that system
to be as participatory as possible, it must be susceptible to being triggered by
the citizens themselves, and should be elected and subsequently operate in a
way that promotes the principles of popular participation and democratic
openness. The process could begin with a proposal (presented by a citizen or
group) for a particular constitutional change45 (or for the adoption of an
entirely new constitution).
On the basis of that proposal, a number of signatures would have to be
collected in order to trigger an initial referendum on the issue (parliament
could also share the legal power to trigger this referendum, making in that
case the collection of signatures unnecessary). After the required number of
signatures is collected, a referendum would take place in which citizens would
be asked whether they wish to convene a CA called to deliberate on the
proposed changes. After a positive vote, the assembly would be convened (and
delegates elected) and its proposals would be subject to a binding referendum
before they come into effect. In a way, this mechanism is reminiscent of Dicey’s
‘Referendum Act’ (briefly discussed in Chapter 5), which would have provided
that no Bill that affected what he considered to be fundamental aspects of the
constitution “should become law until it had been submitted to the electors of
the United Kingdom for their approval or disapproval”.46 However, unlike
Dicey’s referendum, which he considered as a manifestation of the negative
aspect of sovereignty,47 as a people’s veto against unwanted fundamental
changes, the mechanism proposed above would provide citizens with a posi-
tive, productive force: a means for exercising their constituent power.
An obvious problem that emerges here is how to distinguish between
fundamental and non-fundamental constitutional changes in the context of an
unwritten constitution. In a way, this question is not any more difficult (or
easier) than when asked in the context of most written constitutions. As noted
in Chapter 7, just as in the context of written constitutions that lack eternity
clauses or any sort of explicit distinction between ordinary and fundamental
constitutional change (such as an amendment formula that requires different
processes for different types of changes), what is considered fundamental
would vary from country to country (and probably from generation to genera-
tion within a single country), and would usually include things such as the
basic structure of government, the limits of the ordinary law-making power,
the system of rights and the amendment rule itself. But this, of course, raises
another question: even if one agrees that different countries at different times
will consider different principles and institutions to be fundamental, who
should have the right to decide what is considered fundamental, and therefore
outside the scope of the ordinary power of constitutional reform? In Chapter
7 we saw that in some countries with written constitutions, this function has
been assumed by the judiciary.
That is to say, courts have asserted their jurisdiction to declare proposed
constitutional amendments unconstitutional when they amount to replacing
an existing constitution with a new one. Some courts, like the Colombian
Constitutional Court, have expressly grounded this doctrine on the theory of
constituent power. However, there is no reason why this function should
necessarily lie with judges (even though the fact that the judiciary is attrib-
uted with this power is not necessarily problematic from the perspective of
democratic legitimacy). For instance, there could be a process through which
a legislative minority or a number of citizens can prevent a constitutional
change that they consider fundamental from being adopted through the ordi-
nary process of constitutional reform, and thus require government (if it is
determined to produce the relevant changes) to call a special election for the
convention of an extraordinary assembly.
This kind of process is in fact more congenial to systems that operate under
an unwritten constitution and that do not give judges the power to strike
down legislation. It would be used in cases in which a parliamentary majority
intends to adopt a change to the law that, in the view of some members of
parliament and/or a group of citizens, should be adopted through a CA. Since
those best placed to determine what rules have fundamental constitutional
significance are arguably citizens themselves, this type of issue could be settled
by referendum. As suggested above, the initiative to trigger the referendum
for convening the CA could be shared by citizens and a certain percentage
of members of parliament. For example, if a determinate number of ordinary
legislators (say a minority of 35 per cent) are convinced that a particular
Bill amounts to a fundamental constitutional change, they would have the
legal faculty of triggering a referendum (which could also be triggered by
popular initiative).48 The referendum would ask citizens two questions: first,
do you think that the proposed law change has a fundamental constitutional
significance? Second, do you wish to convene a CA to deliberate on the
proposed change?49 If the answer is ‘yes’ to the first question and ‘no’ to
the second, the proposed change should be seen as rejected by the people and
as not susceptible to being legitimately adopted through the ordinary law-
making process.
In the case of the CA convened from below (in the context of an unwritten
constitution), the question of what is a fundamental constitutional change is
less controversial, as the very convocation of the assembly by popular initia-
tive implies that the citizenry has considered that a particular proposal for
change is the proper object of an exercise of constituent power. Needless to
say, the provision of a CA convened from below in a traditional parliamentary
sovereignty system would in itself involve an important constitutional trans-
formation, since it would take constituent power away from parliament and
give it to the people. In such cases, it is important to note the following. If a
mechanism like this were ever to be adopted by a ‘sovereign’ parliament, the
relevant provisions would automatically be protected by a sort of ‘double
entrenchment’ (and parliament would at that very moment lose its role as a
legislative and constituent assembly).
That is to say, their subsequent repeal would in itself amount to a funda-
mental constitutional transformation involving the exercise of constituent
power and would therefore be outside the scope of parliament’s ordinary law-
making power (which would still include the power of ordinary constitutional
reform). However, if at some point a parliamentary majority succeeds in
repealing the Act that created the possibility for citizens to convene a CA, it
would have clearly engaged in an illegitimate exercise of constituent power
and thus would have deprived the constitutional regime of the previously
achieved level of democratic legitimacy. But whether that exercise of constit-
uent power is ‘illegal’ is a different question: provided that courts lack the
power to invalidate legislation, no institution would be able to declare the
relevant Act void.
In those cases, we would be in a purely political zone in which parliament
would have acted legally, but illegitimately. In this respect, the adoption of a
CA, and therefore the abolishment of parliament as a legislative and constit-
uent assembly, would not signify a move towards a ‘legal constitution’.50 The
unwritten constitution would still only be enforceable politically, and judges
would lack the power to strike down any parliamentary attempt to assert its
lost constituent jurisdiction (unless, of course, the people decided to give
judges that power, either through the adoption of a written and supreme
constitution or though some other type of arrangement).
The same would apply if a parliamentary majority engages in what is, by
all accounts, a fundamental constitutional change (for example, replacing a
monarchy with a republic) without the apparent opposition of the citizenry.
In such a situation, parliament would evidently be acting as a constituent
body. However, the lack of opposition (assuming, of course, that there are
mechanisms in place for the electorate or a legislative minority to prevent the
change from taking place through the ordinary law-making process) could
simply be a result of the fact that the change at issue, while fundamental, is so
uncontroversial that it does not warrant the activation of extraordinary mech-
anisms of popular participation. If this is not the case, then parliament would
be illegitimately exercising the people’s constituent power and negating
democracy in important ways.
Concluding remarks
There is no single or correct set of arrangements that must be adopted in order
to meet the demands of democratic legitimacy. Their basic feature, of course,
must be the facilitation of the exercise of constituent power through an open
and participatory procedure. In that respect, the objective of this chapter was
not to describe the institutional mechanisms necessary for the realisation of
democracy at the level of the fundamental laws, but to give examples of the
type of arrangement that would meet the demands of democratic legitimacy.
A regime based on the theory of weak constitutionalism, a democratically
legitimate constitutional regime, would be open to fundamental constitu-
tional change and would allow those changes to take place through the most
participatory mechanisms possible. The CA convened from below, I argued, is
one way of achieving that goal. When a CA is convened at a time when a
strong popular majority is in favour of major constitutional change, some-
thing distinct from the exercise of ordinary political power takes place. That
is what makes such an act an exercise of constituent power. The fact that
citizens are allowed to participate directly in the process (through the collec-
tion of signatures, the initial referendum for convening the assembly, the
selection of delegates, the deliberations about its content and the referendum
for the ratification of the new constitution) makes it an exercise of constituent
power, even if it does not fully exhaust the radical democratic potential of
constituent activity.
What the theory of constituent power does is allow us to think about
certain moments, certain episodes of heightened popular support for constitu-
tional change that warrant and require the use of extraordinary and participa-
tory procedures. In other words, there are times in the life of a constitutional
regime when democracy should trump constitutionalism. That is, episodes
in which citizens act outside the ordinary institutions of government and call
the most fundamental principles of their constitution into question and, if
necessary, participate in the creation of an entirely new juridical order. Such a
conception is in conflict with the traditional view of constitutionalism and, if
it is to be realised, requires the adoption of a weak form of constitutionalism.
Nevertheless, as we will see in the next and final chapter, the CA should be
seen as a means for the execution of the decisions of the constituent subject. It
is in its activation, in the informal political practices through which an exercise
of constituent power is initiated, where an important part of the radical
potential of weak constitutionalism lies. Although by itself it cannot guar-
antee that a democratically legitimate constitutional regime will be produced,
the activation of constituent power, the moments that precede the convening
of an extraordinary constitution-making body – in which popular majorities
and social movements mobilise in support for important constitutional
change – are perhaps where the condition of possibility for a democratic
re-constitution lies.
Notes
1 As Sartori has put it, constitutionalism requires a constitution that not only
limits governmental power but the will of the people as well. Giovanni Sartori,
‘Constitutionalism: A Preliminary Discussion’, The American Political Science
Review, 1962, vol 56, p 862. Limiting the political power of the people is neces-
sary, according to Sartori, “because a constitution cannot effectively limit the
will of the power holders if they can outflank constitutional impediments by
making direct appeals to the will of the people”. Ibid.
2 The way weak constitutionalism approaches popular participation in constitu-
tional change distinguishes it from the work of Sanford Levinson. Levinson
appears to suggest that his proposal for a constitutional convention would be
irrelevant if the structural changes he considers necessary could be achieved
through other methods (like judicial interpretation). Sanford Levinson, Our
Undemocratic Constitution: Where the Constitution Goes Wrong (And How the People
can Correct It), New York: Oxford University Press, 2006, p 164. In contrast,
weak constitutionalism seeks to perpetuate the people’s ability to re-model the
fundamental laws, to institutionalise the means for ordinary citizens to engage
in profound and participatory episodes of constitutional change whenever they
consider it necessary and regardless of the content of the constitution in question.
3 Supreme Court of Justice of Venezuela (Constitutional Chamber), Decision
No. 53, 3 February 2009.
4 James Tully, ‘The Unfreedoms of the Moderns in Comparison to their Ideals of
Constitutional Democracy’, The Modern Law Review, 2002, vol 65, p 213.
5 Jürgen Habermas, ‘Constitutional Democracy: A Paradoxical Union of Contra-
dictory Principles?’, Political Theory, 2001, vol 29(6), p 774.
6 This point has some similarities with the idea of ‘constitutional patriotism’.
See Jürgen Habermas, The Inclusion of the Other, Cambridge: MIT Press 1998,
pp 105–154; Jan-Werner Müller, ‘A General Theory of Constitutional
Patriotism’, International Journal of Constitutional Law, 2008, vol 6(1), p 72.
7 As noted in Chapter 2, the term ‘unwritten constitution’ might not accurately
describe the constitution of countries such as the United Kingdom and New
Zealand, since many of the constitutional rules in place there can be found in
some written legal instruments. In a way, what ‘unwritten’ means is: susceptible of
being changed through the same kind of formal legislative processes through which
ordinary laws are changed. The conception of democratic legitimacy defended in
this book is not incompatible with an ‘unwritten’ constitution that can be
amended through simple legislative majorities, as long as an exception is made
for fundamental constitutional change (which must take place through highly
participatory procedures).
8 A constituent assembly, at least in the context of a modern state, cannot be com-
posed of all citizens so it would therefore have an important representative com-
ponent. However, when those sitting in an assembly lack decision-making
power (in the sense that their proposals need to be directly ratified by the people
before they acquire legal validity), they are not ‘representatives’ but ‘delegates’.
For a discussion of representation and delegation in the context of Schmitt’s
theory of constituent power, see Andreas Kalyvas, Democracy and the Politics of
the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt, Cambridge:
9 See Andrew Arato, ‘Redeeming the Still Redeemable: Post Sovereign Constitu-
tion Making’, International Journal of Politics, Culture, and Society, 2009, vol
22(4), pp 437–438 and Hans Lindahl, ‘Sovereignty and Representation in the
European Union’, in Neil Walker (ed), Sovereignty in Transition, Oxford: Hart
Publishing, 2003.
10 Quoted in Gordon S. Wood, The Creation of the American Republic 1776–1787,
Chapel Hill: The University of North Carolina Press, 1969, p 319.
11 Ibid., p 318.
12 For a discussion, see Steve Pincus, 1688: The First Modern Revolution, New
Haven: Yale University Press, 2009, pp 282–284.
13 Wood, The Creation of the American Republic, p 319. See also Martin Loughlin,
‘Constituent Power Subverted: From English Constitutional Argument to
British Constitutional Practice’, in Martin Loughlin and Neil Walker (eds), The
Paradox of Constitutionalism, Oxford: Oxford University Press, 2007, p. 41.
14 Thomas Jefferson, ‘Notes on the State on Virginia’ (1776), in Merrill D.
Peterson (ed), The Portable Thomas Jefferson, New York: The Viking Press, 1975,
p. 170. A similar point was raised by Schmitt in his Constitutional Theory: “If
such a constitution-making assembly were not qualitatively different from a
properly constituted parliament, one would be led to the nonsensical and unjust
result that a parliament could bind all subsequent parliaments (selected by the
same people according to democratic electoral methods) through simple major-
ity decisions and could make a qualified majority necessary for the elimination
of certain (not qualitatively different) laws, which came about through simple
majority.” Carl Schmitt, Constitutional Theory, Durham: Duke University Press,
2008, p 80.
15 Quoted in Wood, The Creation of the American Republic, p 337.
16 Wood, The Creation of the American Republic, p 337. Locke’s theory of resistance
was very influential in eighteenth-century North America and, as noted in
Chapter 5, reflected in the Declaration of Independence. However, some of the
state constitutions adopted in the eighteenth century attributed the people with
the right to create a new government even in the absence of the extreme govern-
mental abuses required by the Lockean conception. See for example Kentucky’s
Constitution of 1792, which attributed “the people” with the power to “alter,
reform, or abolish their government” in any “manner as they may think proper”.
Christopher G. Fritz, American Sovereigns: The People and America’s Constitutional
Tradition Before the Civil War, Cambridge: Cambridge University Press, 2008,
p 28.
17 See Richard B. Bernstein (with Jerome Agel), Amending America: If We Love the
Constitution So Much Why Do We Keep Trying to Change It?, Lawrence: University
Press of Kansas, 1993, p 8.
18 Quoted in Roger Sherman Hoar, Constitutional Conventions: Their Nature, Powers,
and Limitations, Boston: Little, Brown, & Company, 1917, Chapter XI, Sec 3.
19 Ibid.
20 Ibid.
21 For a discussion, see Loughlin, ‘Constituent Power Subverted’, pp 35–38.
22 An example of this is the election of the first French Parliament after the Second
World War, when voters were asked: “Do you want the assembly elected today
to be a constituent assembly?” See Jon Cowans, ‘French Public Opinion and the
Founding of the Fourth Republic’, French Historical Studies, 1991,vol 17, p 62.
23 Legislatures, of course, are not unknown to engage in this kind of self-
transformation. For example, through the New Zealand Constitution Amend-
ment (Request and Consent) Act 1947 and the Legislative Council Abolition
Act 1950, the New Zealand Parliament abolished its upper house. In 1922, the
Australian State of Queensland’s legislature also abolished its upper house
through legislation. The concern that ordinary legislators would not be likely to
make certain changes supported by the citizenry was also present in some of the
discussions around the adoption of Article V of the US Constitution in 1787.
See Bernstein and Agel, Amending America, p 17.
24 For a defence of the superiority of extraordinary delegates over ordinary repre-
sentatives in the context of constitutional change, see Dennis C. Mueller, ‘On
Writing a Constitution’, in Ram Mudambi, Pietro Navarra and Giuseppe
Sobbrio (eds), Rules and Reason: Perspectives on Constitutional Political Economy,
Cambridge: Cambridge University Press, 2001, p 9.
25 Ruth Gavison, ‘Legislatures and the Phases and Components of Constitutional-
ism’, in Richard W Bauman and Tsvi Kahana (eds), The Least Examined Branch:
The Role of Legislatures in the Constitutional State, Cambridge: Cambridge Univer-
sity Press, 2006, p 206.
26 Sheldon Wolin, ‘Fugitive Democracy’, in Seyla Benhabib (ed), Democracy and
Difference: Contesting the Boundaries of the Political, Princeton: Princeton University
Press, 1996, p 31. Wolin’s ideas were discussed in Chapter 3 of this book.
Power’, The Indian Year Book of International Affairs, India: Madras, 1966–1967,
p 403.
28 Ibid. Cf. Benjamin Rush, ‘Address to the People of the United States’, in John
P. Kaminski et al (eds), The Documentary History of the Ratification of the Constitu-
tion, Charlottesville: University of Virginia Press, 2009. In a Lockean fashion,
Rush expressed: “It is often said that ‘the sovereign and all other power is seated
in the people’. This idea is unhappily expressed. It should be – ‘all power is
derived from the people’. They possess it only on the days of their elections. After
this, it is the property of their rulers, nor can they exercise or resume it, unless it
is abused.”
29 The fact that a Constituent Assembly is authorised by the constitutional order
does not necessarily make it inconsistent with the theory of constituent power.
This point was discussed in Chapter 5.
30 Mythical because, as noted in Chapter 6, most constitutions are not adopted
democratically and most people are usually born into an already constituted
constitutional regime.
31 The idea here is not to set the threshold too high so as to make the triggering of
the constituent assembly impossible, but at the same time not setting it so low
that a minority that does not have the support of large sections of the population
(but perhaps plenty of economic resources) can easily initiate a process of
fundamental constitutional change. The few constitutions that allow for the
convocation of a constituent assembly ‘from below’ require 12–20% of the sig-
natures of registered electors (Ecuador 12%, Venezuela, 15%, Bolivia 20%).
32 Because a Constituent Assembly is generally understood as a means for exercis-
ing constituent power, its proposals for change are not normally subject to
judicial review, regardless of their content. However, and as noted above, the
legal validity of their proposals usually depends on their ratification in a referen-
dum. For an unusual case of a court reviewing the decisions of a constitution-
making body, see In re Certification of the Constitution of the Republic of South Africa,
1996, 1996 (4) SA 744 (CC) and In re Certification of the Amendment text of the
Constitution of the Republic of South Africa, 1996, 1997 (2) SA 97 (CC).
33 Constitution of Venezuela (1999), Article 347. In the case of the Venezuelan
Constitution, it is not clear if a referendum is required to convene the assembly
or if the collection of signatures (15% of the electors) is all that is needed. A
literal reading of the text certainly suggests the latter, but such reading would
likely be rejected in practice. Interestingly, the set of constitutional changes
rejected by the electorate in December 2007 included an amendment that
would have increased the number of signatures required from 15% to 30%.
34 Constitution of Ecuador (2008), Article 444.
35 Article 411. The translation is mine. The official Spanish text of Article 411
reads as follows: “La reforma total de la Constitución, o aquella que afecte a sus
bases fundamentales, a los derechos, deberes y garantías, o a la primacía y
reforma de la Constitución, tendrá lugar a través de una Asamblea Constituyente
originaria plenipotenciaria, activada por voluntad popular mediante referendo.
La convocatoria del referendo se realizará por iniciativa ciudadana, con la firma
de al menos el veinte por ciento del electorado; por mayoría absoluta de los
miembros de la Asamblea Legislativa Plurinacional; o por la Presidenta o el
Presidente del Estado. La Asamblea Constituyente se autorregulará a todos los
efectos, debiendo aprobar el texto constitucional por dos tercios del total de sus
miembros presentes. La vigencia de la reforma necesitará referendo constituci-
onal aprobatorio.”
36 For a discussion about the conflict around the 2/3 rule, which involved social
unrest and also a decision of the Supreme Court of Justice declaring that the
assembly was a ‘constituted power’, see Jorge Lazarte, ‘La Asamblea Constituy-
ente de Bolivia: De la Oportunidad a la Amenaza’, Nuevo Mundo Mundos Nuevos,
2008, vol 8. Online. Available http://nuevomundo.revues.org/42663?lang=en>
(accessed 9 September 2009); Ruben Martínez Dalmau, El Proceso Constituyente
Boliviano (2006–2008) en el Marco del Nuevo Constitucionalismo Latinoamericano,
Editorial Enlace, La Paz, 2008.
37 Jon Elster, ‘Legislatures as Constituent Assemblies’, in Richard W. Bauman
and Tsvi Kahana (eds), The Least Examined Branch: The Role of Legislatures in the
Constitutional State, Cambridge: Cambridge University Press, 2006, p 187.
38 Mueller, ‘On Writing a Constitution’, p 18. To have an idea of what counts as a
practically feasible number of delegates, one of the largest assemblies has been
the Indian Constituent Assembly, which comprised 389 members. Patrick
Fafard and Darrel R. Reid, Constituent Assemblies: A Comparative Survey, Ontario:
Institute of Intergovernmental Relations, 1991, p 18. The Kenyan National
Constitutional Conference was even larger, and comprised 629 delegates.
39 Mueller, ‘On Writing a Constitution’, p 18.
40 The decision between election and random selection is not only about assuring
representativeness, but also heightened popular engagement, and a full discus-
sion of this topic is outside the scope of this book. It might be true that a scien-
tific random selection of delegates would result in a representative assembly
“very unlikely to differ radically from the population”: James S. Fishkin and
Robert C. Luskin, ‘The Quest for Deliberative Democracy’, in Michael Saward
(ed), Democratic Innovation: Deliberation, Representation and Association, London:
Routledge, 2000, p 20. Nevertheless, perhaps something is lost by depriving
citizens of the opportunity to select particular delegates that, for different
reasons, they think would better represent their views in a deliberative exercise
(for example, popular interest in the process might be affected if citizens do not
think the assembly is acting in their ‘name’). From the perspective of delibera-
tive democracy, however, there is no guarantee that an election of delegates will
be preceded by sufficient (and intelligent) deliberation and debate. See John S.
Dryzek, ‘Legitimacy and Economy in Deliberative Democracy’, Political Theory,
2001, vol 29, pp 653–654. For a proposal designed to increase deliberation
among citizens before an election, see Bruce Ackerman and James Fishkin,
Deliberation Day, New Haven: Yale University Press, 2004. For a discussion of
the advantages and disadvantages of election and selection by lot in the context
of a citizen assembly, see Kevin O’Leary, ‘The Citizen Assembly: An Alternative
to the Initiative’, University of Colorado Law Review, 2007, vol 78, pp 1525–
1535. More generally, see Bernard Manin, The Principles of Representative
Government, Cambridge: Cambridge University Press, 1997.
41 For example, the French Constituent Assembly adopted a rule proposed by
Robespierre according to which the members of the assembly were banned from
entering the first ordinary legislative assembly elected under the new constitu-
tion. See Andrew Arato, ‘Forms of Constitution Making and Theories of Democ-
racy’, Cardozo Law Review, 1995, vol 27, p 227. A similar rule was adopted by
the Colombian National Constituent Assembly of 1991. See Constitution of
Colombia (1991), Transitional Article 2.
42 There could certainly be a CA with limited competencies, in the sense that the
people could authorise delegates to make proposals only with respect to some
fundamental aspects of the constitutional regime. Such an assembly would
involve the exercise of constituent power even if it is not given the power to
create an entirely new constitutional text, as those (fundamental) changes
would amount to an act of re-constitution. For an example, see Article 376 of
the Constitution of Colombia (1991).
43 This does not mean that there cannot be participatory procedures for ordinary
constitutional change, such as the popular initiative to amend the constitution.
Present in several Latin American and European constitutions, as well as in the
constitutions of several states in the US, this mechanism typically works in the
following manner. A group of citizens drafts a proposal for amending the consti-
tution and collects the required number of signatures (usually around 10–15%
of the registered electors) in order to be able to present the proposal to the
authorities. Once the proposal is presented and the signatures validated, govern-
mental authorities are required to submit it to the people for their approval or
rejection in a referendum. If the proposal is approved, it immediately becomes
part of the constitutional text. The legislature is thus bypassed altogether, and
the official authorities have no choice but to provide the administrative tools
that allow citizens to exercise their power to change the constitutional text ‘by
themselves’. The competencies of the popular initiative to amend the constitu-
tion should be seen as equivalent to that of the ordinary amending power. It
would be used to make those kinds of changes that citizens deem necessary but
that do not warrant the convocation of a constituent assembly. They would play
the role, as John Calhoun once said of the amending power in general, of the vis
medicatrix of the constitutional regime: the power to repair the constitution and
not to radically transform it. John Calhoun, The Works of John Calhoun, New
York: Russell and Russell, 1968. At the same time, they could be used to over-
rule the decisions of the courts regarding the constitutionality of ordinary legis-
lation (if the system at hand allows for judicial review), and would become
especially useful to adopt changes that a legislature would not be eager to adopt
through the ordinary amendment procedure. Although not having a good
reputation among progressives in the US (particularly as a result of its use in
California, where the prohibition against same-sex marriage was given constitu-
tional status through a popular initiative), this mechanism has been put to more
positive uses in other parts of the world. For example, it was used in Uruguay to
stop the privatisation of state enterprises. For instance, in 2004, a popular initia-
tive was used to include the ‘right to water’ in the constitutional text in order to
prohibit the privatisation of the water sector. In this particular case, after the
signatures were presented to the government, the required referendum took
place and 64% of the population voted in favour of the proposed amendments
(with a participation of 90% of registered voters). See Carlos Santos, Aguas en
Movimiento: la Resistencia a la Privatización del Agua en Uruguay, Montevideo: Edi-
ciones de la Canilla, 2006. More generally see David Altman, ‘Democracia
Directa en el Continente Americano: ¿Autolegitimación Gubernamental o
Censura Ciudadana?’, Política y Gobierno, 2005, vol 12(2), p 203.
44 I have discussed the possibility of such a mechanism in the context of New
Zealand in Joel I. Colón-Ríos, ‘New Zealand’s Constitutional Crisis’, New
Zealand Universities Law Review, 2011, vol 24, p 448.
45 As in the CA convened from below, discussed in the context of written constitu-
tions, this proposal would take the form of a proposal for change rather than a
draft of a specific amendment to a constitutional statute or convention (e.g., ‘A
proposal for the convocation of a constituent assembly to deliberate on the
possible entrenchment of the Bill of Rights Act’, or ‘A proposal for the adoption
of a republican constitution’).
46 A.V. Dicey, ‘The Referendum’, National Review, 1894, vol 23, p 69. Dicey
specifically mentions the rights of the Crown, the constitution of either of the
Houses of Parliament and the Acts of Union, as susceptible to change only after
a referendum.
Macmillan, 1959, p cxi.
48 The main reason for giving a certain percentage of members of parliament the
faculty to trigger the referendum is that in cases in which there is clear public
support for a Constituent Assembly and urgency to make certain changes, the
process of signature collection can be avoided. Granted, giving parliamentary
minorities the faculty to trigger referendums on constitutional change comes
accompanied with the risk that this mechanism becomes a tool for the political
opposition to prevent the parliamentary majority from properly exercising its
law-making power and to shift an important part of the decisions normally
made by parliament to a constituent assembly (e.g., by triggering referendums
on Bills whose constitutional significance is arguably non-existent). However,
although there is certainly the risk of abuse, one must not underestimate the
political cost of calling – and perhaps being defeated in – what are perceived to
be unnecessary referendums.
49 Another, different option (and, in a sense, an option less consistent with the
principle of popular participation and with the doctrine of parliamentary sover-
eignty) would involve the judiciary. Under this alternative, instead of triggering
a referendum, citizens or legislators would ask a court to determine whether a
particular law change is of a fundamental nature and thus requires an exercise of
constituent power. This would be similar to the role assumed by judges in those
countries with written constitutions in which the doctrine of unconstitutional
constitutional amendments, discussed in Chapter 7, has been adopted.
50 For a discussion, see Richard Bellamy, Political Constitutionalism: A Republican
Defence of the Constitutionality of Democracy, Cambridge: Cambridge University
Press, 2007.
9 Activating constituent power
Weak constitutionalism and democratic legitimacy not only demand a consti-

tution that makes available a set of mechanisms that facilitate the exercise of
constituent power. The most an established mechanism of constitutional
change can achieve, it was suggested by Carl Schmitt, is the execution of the
constituent power: the transformation of the will of the constituent subject
into law. But in order for an exercise of constituent power to take place, some-
thing, some sort of political act(s), must occur that results in the initiation of
constituent activity. Such activity would normally take the form of informal
political practices like civil disobedience, street assemblies and mass protests.
By engaging in those kinds of activities, groups who aim at the transforma-
tion of the constitutional regime attempt to create the climate necessary (e.g.,
convince other citizens that an important constitutional transformation is
desirable) for an exercise of constituent power to take place and a new consti-
tutional regime to be produced. Put differently, these groups would attempt
to activate constituent power in the hope that the decision (now supported by
a great majority of the population) in favour of a new constitutional regime is
executed. As a way of concluding my analysis, this chapter will examine the
distinction between the activation and the execution of constituent power,
and briefly explore its meaning in the context of the recent upheavals in the
Middle East, North Africa and Europe.
The activation/execution distinction

A democratic of constituent power might be the result of at least two different
types of events. The first is a situation in which a government attempts to use
the ordinary process of constitutional reform to inaugurate a new constitu-
tional regime. In such cases, depending on the regime in question, the judi-
ciary might invalidate the relevant constitutional change and the government
would have no choice but to abandon its plans or to ask the citizenry to convene
an extraordinary constitution-making assembly. If a majority votes in favour
of convening the extraordinary assembly, the constituent process begins. In
this type of situation, the initiation of the exercise of constituent power is a
result of the combination of an act of government and of a popular vote.
The second type of situation is different. It is about a citizenry that wishes
to alter the constitutional regime without the open support, or even against
the will, of government. In this second type of situation, it is usually a group
of citizens that seeks to convince popular majorities of the need to adopt a new
or radically transformed constitution. If these citizens are successful, it could
be said that they were able to activate constituent power. Only after that
happens, a constitution-making body, in any of its variants, would be convened
and a new constitution produced (or, to put it slightly differently, the will of
the constituent subject executed). It is on this type of situation that I will
focus in this chapter.
In such a situation, the citizens of a democratically legitimate constitu-
tional regime, one open to future exercises of constituent power, are likely to
recur to the established participatory procedures of fundamental constitu-
tional change. And in a regime that lacks that opening, citizens would put
pressure on state officials until they agree to create a means for the exercise of
constituent power. Both in the instance of a regime whose constitution allows
citizens to convene a constituent assembly and in the case of a regime in which
the power of constitutional reform is in the exclusive hands of ordinary
government, one can make a distinction between the activation of constituent
power and its execution. In both instances (provided that the movement in
favour of fundamental constitutional changes comes from civil society and not
from the state), the exercise of constituent power would likely be preceded by
different public manifestations in favour of a new constitution.
The exercise of constituent power is activated through this kind of informal
practice, and only when this happens would a mechanism of constitution-(re)
making is likely to be convened (regardless of whether it is convened by the
collection of signatures or by the legislature). Once that happens, the exercise
of constituent power becomes more organised and regulated, in the sense of
formally taking place through a special body that is elected and that operates
according to certain rules. Such a body is called to execute the decision of the
constituent power; that is, to produce fundamental constitutional transforma-
tions. Constituent power’s execution, of course, requires the constitution-
making body to deliberate about the ways in which the popular mandate for
fundamental constitutional change may be translated into constitutional law,
and its proposals would be subject to popular ratification.
Carl Schmitt understood this distinction very well. It is true that he
thought “there cannot be a regulated procedure, through which the activity of
the [constituent power] would be bound”.1 Moreover, he maintained that the
constituent power of the people is an “unmediated will”, one which exists
prior to and above “every constitutional procedure”, and insisted that no
constitutional form could “prescribe the form of its initiation”.2 He thus
maintained that because the people “are not a stable, organised organ” (unlike,
for example, a monarch), the decision to create a new constitutional regime
could “only be made evident through the act itself and not through observa-
tion of a normatively regulated process”.3 For Schmitt, the natural form of the
Activating constituent power 177
direct expression of a people’s will “is the assembled multitude’s declaration
of their consent or disapproval, the acclamation”; the people, he said, can only
“say yes or no to the fundamental questions of their political existence”.4 This
unmediated and non-participatory character of the constituent power, an
instance in which the citizenry is limited to make a ‘yes’ or ‘no’ decision as to
whether to alter its form of political existence, sits uncomfortably with the
conception of democracy and democratic legitimacy defended in this book.
But what Schmitt was describing in those passages was clearly not an exer-
cise of constituent power, but the ways in which it might be activated. Schmitt
was simply describing the types of political practices that he thought should
be taken to reflect a popular will to exercise constituent power. This is why he
wrote that although no constitution can confer constituent power or establish
the process through which it is initiated, “[t]he further execution and formu-
lation of a political decision reached by the people in unmediated form
requires some organization, a procedure, for which the practice of modern
democracy developed certain practices and customs”.5 The examples he
considers regarding the procedures that can be used to execute the people’s
political decisions are different types of extraordinary constitution-making
bodies and special elections.6
If these organisations and procedures are not available, the constituent
subject could remain in a state of powerlessness and disorganisation; it would
be unable to transform its will into law. If Schmitt’s theory of constituent
power is understood in light of this distinction, its practical applications
become much clearer and it is freed from its more mysterious aspects. He was
only noting the uncontroversial fact that no constitutional form can establish
the ways in which a popular majority may express their will to create a new
constitution. Such expressions would naturally take place in the political
terrain through popular manifestations against the established constitutional
order and in favour of the creation of a new one. For example, they could
involve a popular movement demanding a fundamental constitutional change
through different informal political practices. These proposed changes would
normally be of a general character (such as the creation of a new constitution
or the adoption of mechanisms to enforce social and economic rights), and
their transformation into constitutional law would therefore be subject to
intense deliberation within (and outside) the constitution-making body
finally called to execute constituent power.
Nevertheless, Schmitt’s conception of the way in which an exercise of
constituent power is initiated is problematic in at least one important respect.
It is not accompanied by a deliberative conception of the public sphere, one in
which proponents of a new constitutional order not only express their ‘will’ to
create a new constitution through non-deliberative acts of acclamation, but in
which they engage in informal deliberative practices designed to engage with
other citizens and persuade them about the need for re-inaugurating the
constitutional order.7 If one sees the moment of the decision (in which Schmitt
is almost exclusively focused) as preceded by a set of informal participatory
practices through which citizens deliberate about whether a fundamental
constitutional change is necessary (and followed by the convening of a
democratically elected constituent assembly that would deliberate about the
specific constitutional changes to be adopted), then the distinction between
the initiation and the execution of constituent power assumes a radical demo-
cratic potential. It allows us to conceive of the pre-constitution-making
moment as a terrain of direct citizen participation and of popular challenges
to the established constitutional regime. In this respect, a regime based on the
theory of weak constitutionalism, a democratically legitimate constitutional
regime, would not only be open to fundamental constitutional change through
highly participatory procedures, but would also guarantee the rights that
make the democratic initiation of constituent power possible, such as rights
to assembly and expression.
Of revolutions, informal assemblies, and other protests

The activation of constituent power, as we have seen, escapes any form of legal
organisation. This is why Andreas Kalyvas is correct in stating that from the
perspective of constituent power, “phenomena such as civil disobedience,
irregular and informal movements, insurgencies and revolutionary upheavals
retain all their dignity and significance even if they directly challenge the
existing constitutional structure of power”.8 These are the types of political
practices that would normally precede an exercise of constituent power, the
activities that might give birth to a popular majority determined to create a
new constitution. It is not difficult to identify recent instances of the initiation
of constituent power in action. From the student demonstrations that led
to the adoption of the Colombian Constitution of 1991 to the indigenous
mobilisations that ended in the creation of the Bolivian Constitution of
2009, the twentieth and twenty-first centuries are full of examples. Never-
theless, the most recent (and perhaps most extreme) examples are those cur-
rently taking place in the Middle East and North Africa, where disorganised
multitudes have challenged the existing juridical orders and demanded the
establishment of new constitutions.
In a way, the massive character of these movements is consistent with
Schmitt’s conception of the activation of constituent power: a multitude
expressing its decision to establish a new order. This ‘decision’ is perhaps
reflected in one of the main slogans of these demonstrations – Al-sha’b yurid
isquat al-nizam (‘The people want the downfall of the regime!’).9 These popular
protests have overthrown governments in places like Tunisia and Egypt, and
at the time of writing this book they continue to exert pressure in countries
like Bahrain, Syria, and Yemen. While having their origins in complex social,
economic, and political issues, they involve demands for traditional liberal
freedoms and important constitutional reforms.
This is why, in those cases in which they have succeeded, constitutional
changes are taking place; and in those where they have not, protesters have
clearly shown their intentions of inaugurating new constitutional orders.10
Nevertheless, even in Egypt, where a strong popular movement was able to
activate an episode of constituent activity, the constitutional changes that
resulted have not been adopted through highly participatory procedures.11 In
fact, the constitutional changes recently approved in Egypt (via referendum)
were drafted by a committee of experts appointed by the Supreme Council of
the Armed Forces.12 Not surprisingly, some have criticised these changes as
having failed to meet some of the main demands of the citizenry.13 In cases
like this, to use Schmitt’s formulation, the constituent power has been, at
least for now, unable to transform its proposals into constitutional law.
The recent events in the Middle East and North Africa also serve to stress
the point that in the absence of mechanisms that facilitate the ‘execution and
formulation’ of the decisions of the constituent power (such as the Constituent
Assembly convened from below), the success of a popular movement in
producing important constitutional changes depends on democratically irrel-
evant factors such as the effectiveness of the state’s repressive apparatus, how
adept a political movement is in persuading people to engage in different
forms of protest that might even involve the risk of death, and how the
challenge to the existing regime, and the regime itself, is perceived by the
international community.14 Accordingly, some popular movements (e.g.,
Tunisia and Egypt) are successful in promptly overthrowing the existing
regimes, while in other places (e.g., Bahrain, Libya, Syria and Yemen) the
regimes in question are able to survive for longer. This is of course a direct
implication of the absence of democratic legitimacy: even though those
regimes in many cases failed to protect individual and political rights, their
constitutions, just as the typical constitutionalist fundamental law, lacked
mechanisms designed to facilitate the exercise of constituent power. Perhaps
such mechanisms of participatory constitutional change would not have
meant much in a context of political and social repression, in which citizens’
political rights are heavily restricted, but their mere availability would have
likely affected, in positive ways, the procedures chosen to bring the new
constitutional regime into existence.15
As noted in previous chapters, the basic condition of democratic legiti-
macy, as well as the very ideas of democracy and constituent power, require
that basic political rights are respected (regardless of the specific form they
take). But the recognition and respect of these rights, as I have argued in the
previous chapters, is not enough: to take the people’s constituent power seri-
ously requires providing citizens with the means for its exercise. This point is
exemplified in the political protests currently taking place in different
European countries, where multitudes who enjoy basic political rights lack
any formal means to translate their political demands into constitutional law.
In fact, while the ‘Arab Revolutions’ are perhaps the extreme example of the
activation of constituent power (a set of political acts unmediated by any form
of procedure through which mass movements expressed their support for
fundamental constitutional changes), the recent events in Greece and Spain
provide more discrete examples of the type of political practices through
which constituent power might be activated.16
In Greece, citizens have engaged in general and regional strikes, as well as
in what Costas Douzinas has described as “imaginative acts of resistance”17
(including different forms of civil disobedience) in order to protest against a
set of economic measures that are seen as imposed (with the agreement of the
Greek government) by the International Monetary Fund, the European Union
and the European Central Bank. “A motley multitude of indignant men and
women of all ideologies, ages, occupations, including the many unemployed,”
writes Douzinas, engaged in “daily occupations and rallies, sometimes
involving more than 100,000 people . . . with the police observing from a
distance.”18 They call themselves ‘the outraged’ and protest against “the
unjust pauperising of working Greeks, the loss of sovereignty that had turned
the country into a neo-colonial fiefdom of bankers, and the destruction of
democracy”.19
The demonstrations included informal assemblies of thousands of citizens
(which took place in Syntagma, the central square of Athens opposite to
Parliament), in which speakers were selected randomly (aspiring speakers
were given a number and called to the platform if their number was drawn)
and discussed different topics and proposals.20 Weekly debates were also
organised, in which lawyers, economists and philosophers presented alterna-
tives to deal with the crisis. For Douzinas, these types of political practices
should be understood as “democracy in action”, as a demonstration that
“parliamentary democracy must be supplemented with its more direct
version”.21 However, he also reminds us that the Syntagma Square was named
after nineteenth-century demonstrations, in which citizens demanded a
constitution (syntagma) from the monarch. This is, he argues, what the
‘outraged’ are doing, “demanding a new political arrangement to free them
from neoliberal domination and political corruption”. In the absence of the
‘total’ political revolutions seen in the Middle East and North Africa, these
kinds of political practices are the ones that, in my view, would normally
precede an exercise of constituent power in a typical ‘constitutional democ-
racy’ or even in a regime based on a weak form of constitutionalism.
These practices not only create the political climate necessary for large
popular majorities to become interested in possible constitutional changes,
but provide additional channels of direct participation and deliberation
among citizens. This does not mean that the main objective of those political
practices (and of those involved in them) must necessarily be the production
of fundamental constitutional transformations. However, from a juridical
perspective, widespread discomfort with the structure and functioning of a
political system would normally require some form of constitutional change.
In that respect, it is not surprising that in June 2011 the Greek government
announced a referendum on a set of (as of this moment, yet undisclosed)
“major changes” to the constitution.22 A constitutional referendum, as I have
argued in previous chapters, is not a sufficient mechanism for the exercise of
constituent power and, accordingly, such constitutional changes (if they ever
take place) would be characterised by an important deficit of democratic legit-
imacy. Moreover, precisely because they would not take place through a
process that allows citizens to propose, deliberate and decide upon the content
of the transformed constitution, it is unlikely that they would meet, in any
significant degree, the demands of the protest movement.
Only time will tell if this political movement will succeed in triggering a
genuine constituent episode, one that will ensure the new constitution is the
result of the execution of the constituent power. Interestingly, in the context
of the political protests taking place in Spain, which involve calls for ‘real
democracy’ and political practices that range from civil disobedience and mass
mobilisations to informal assemblies, the very language of constituent power
has been explicitly present. It has been maintained, for example, that the
protest movement (los indignados, which literally means ‘the outraged’) should
be seen as “the germ of a more ambitious, constituent process”.23 And, given
the apparent unresponsiveness of state officials, it has been suggested that a
“participatory constituent assembly” must be called in order to redefine the
democratic process and create solutions to the crisis.24 In a similar vein, it has
been argued that when acts of resistance and disobedience become massive, as
in Spain, they become a “democratic and constituent imposition that goes
beyond the law and exhibits the vulnerabilities of the political system”.25
Even if some of these statements might overestimate the revolutionary
potential of the protest movement, they throw light on the distinction
between the activation and the execution of constituent power. They also
show, however, the democratic limits of a constitutional regime that does not
seek to provide an opening for constituent power to manifest from time to
time. In such a context, as Schmitt suggested, there is always the possibility
that the constituent power remains ‘powerless’ and disorganised, and there-
fore unable to produce a novel constitution. This does not mean, however,
that movements taking place under a regime that is not susceptible to demo-
cratic re-constitution would necessarily be unable to trigger participatory
processes of constitutional change, as the success of the popular protests in
Iceland demonstrates.
Those protests, which were a direct result of a financial crisis that quickly
became political, ended in a participatory constitution-making process.26
That is to say, Icelanders decided to (partially) bypass the existing constitu-
tion’s amendment process and recur to a different, more democratic one. A
Constitutional Council27 composed of 25 elected citizens was given the task of
drafting a constitution that was then sent to the country’s parliament (the
Althingi). This election was preceded by a ‘citizen jury’ composed of 950
randomly selected citizens, which gave recommendations as to the content of
the future constitution. The Althingi would then (ideally) send the draft
constitution to a popular referendum or return it to the Constitutional Council
for amendments.28 As the reader will note, this process exhibits some impor-
tant inconsistencies with the classical theory of constituent power (the most
obvious of which is the non-sovereign character of the constitution-making
body and its legal inferiority to the ordinary legislature)29 and could be
improved in different ways.
Nevertheless, the degree of popular involvement in the drafting of the
constitution was high by most standards. For example, it made intense use of
technology and social media in order to allow non-members of the
Constitutional Council to participate in the drafting process, and has been
identified by some as an instance of constitution-making being ‘crowd-
sourced’. In this instance, one may conclude that the activation of the constit-
uent power came very close to result in an authentic constituent process.
Unfortunately, as is the case with most contemporary constitutions, the draft
constitution (although incorporating some mechanisms of direct democ-
racy),30 did not attempt to reproduce the participatory and extraordinary char-
acter of the constitution-making process in its amendment rule. Instead, the
proposed amendment procedure31 places the initiative of constitutional reform
in the ordinary legislature, whose proposals for change would normally have
to be ratified in a referendum. In that respect, even if it has a claim to a demo-
cratic pedigree (that is, provided that the Althingi submits the draft constitu-
tion to a referendum without first engaging in non-cosmetic changes),32 the
draft constitution lacks an opening for future exercises of constituent power
and thus would not meet the basic condition of democratic legitimacy. From
the perspective of weak constitutionalism, the tasks of a constitution-maker
would not only be to adopt a constitution through the most participatory
procedures possible, but to facilitate the occurrence of future acts of demo-
cratic re-constitution.
Concluding remarks
“Democracy,” Sheldon Wolin has written, “means participation; but partici-
pation is not primarily about ‘taking part’, as in elections or office holding.”33
Participation means, he says, “originating or initiating cooperative action
with others . . . in response to felt needs”.34 The activation of constituent
power, although only a part of a democratic act of re-constitution, exemplifies
Wolin’s point. After all, the ‘taking part’ in the production of fundamental
constitutional changes (e.g., through the collection of signatures that might
lead to convening a Constituent Assembly and the participation in the
different elections that such a mechanism involves) would be highly unlikely
unless resulting from informal political acts, political practices that create the
environment for constituent power to be activated. As has been argued
through this book, democratic legitimacy requires certain constitutional
forms, mechanisms that facilitate the exercise of the people’s constituent
power when fundamental constitutional changes are needed. But such mecha-
nisms, even the Constituent Assembly convened from below, require an active
citizenry, one that sees the constitution as theirs and, as such, as the proper
object of fundamental change. The recent events in places as diverse as Egypt,
Greece, Spain and Iceland show that even in large and complex societies,
informal political practices can result in the activation of processes of funda-
mental constitutional change. However, at the same time, they show that the
exercise of constituent power, the reconstruction of the judicial order through
a process consistent with the principles of democratic openness and popular
participation, can hardly become a reality in constitutional regimes that fail
to meet the basic condition of democratic legitimacy.
Notes
p 130.
2 Ibid., p 132.
3 Ibid., p 131. Schmitt’s conception of the people came very close to expressing
the distinction between democratic governance and democracy at the level of the
fundamental laws (discussed in Chapter 3): “The people in this capacity [i.e., as
the bearer of the constituent power] would lose their nature, when they direct
themselves to the daily, normal functioning and the regular completion of offi-
cial business. According to their nature, the people are not a magistrate, and
even in a democracy they are never the responsible officials.” Ibid. A similar
point is also made by Andreas Kalyvas. See Andreas Kalyvas, Democracy and
the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt,
Cambridge: Cambridge University Press, 2008, pp 133–134.
5 Ibid., pp 132, 140.
6 Ibid.
7 Here, Habermas’ conception of the public sphere in which “culturally mobilised
publics” organised in “associations of civil society” interact with formal legal
institutions becomes particularly relevant. Jürgen Habermas, Between Facts and
Norms: Contributions to a Discourse Theory of Law and Democracy, Cambridge: MIT
Press, 1996, p 301. For a discussion of the democratic limitations of Schmitt’s
theory of constituent power, see Andreas Kalyvas, Democracy and the Politics of the
Extraordinary, pp 123–126.
Constellations, 2005 vol 12, p 230.
9 Perry Anderson, ‘On the Concatenation in the Arab World’, New Left Review,
2011, vol 68, pp 9–10.
10 For example, by mid 2011, the Libyan Transitional National Council released
the “Draft Constitutional Charter for the Transitional Stage”, which sets out a
process for the creation of a new Libyan Constitution. Although the specifics of
that process are somewhat unclear, it seems that it would involve an elected
Constituent Assembly (the members of the Transitional National Council
apparently would not be allowed to run as delegates), which would draft a con-
stitution in a three-month period and submit it to a referendum.
11 This might not be the case in Tunisia, where a special election for a 217-
member Constituent Assembly took place in October 2011.
12 Interestingly, one of the amendments approved in the referendum contemplates
the creation of a new constitution by a Constituent Assembly whose members
would be appointed by the two houses of parliament in a joint meeting. Egypt
State Information Service, ‘Army Council issue statement on constitutional amend-
ments’, 27 February 2011. Available www.sis.gov.eg/en/Story.aspx?sid=53903
(accessed 20 August 2011).
13 See for example Taerk Masoud, ‘The Road to (and from) Liberation Square’,
Journal of Democracy, 2011, vol 22(3), p 20; Jason Gluck, ‘Constitutional Reform
in Transitional States: Challenges and Opportunities Facing Egypt and Tunisia’,
Peacebrief, no. 92 (United Stated Institute of Peace) (April 2011). Online. Avail-
able www.usip.org/files/resources/PB92.pdf> (accessed 20 August 2011).
14 This argument is also developed in Joel I. Colón-Ríos and Allan C. Hutchinson,
“Democracy and Revolution: An Enduring Relationship?”, Denver University
Law Review, 2011, vol 89(2).
15 These events may also be examples of revolutions that fail to leave the door open
for future democratic revolutionary activity; that is, for future exercises of con-
stituent power. In a certain way, this idea resonates with Slavoj Žižek’s view
that “the Egyptian summer of 2011 will be remembered as marking the end of
revolution, a time when its emancipatory potential was suffocated”. Slavoj
Žižek, ‘Shoplifters of the World Unite’, London Review of Books (19 August
2011). Online. Available www.lrb.co.uk/2011/08/19/slavoj-zizek/shoplifters-of-
the-world-unite> (accessed 25 August 2011).
16 Žižek has argued that the 2011 riots in the UK expressed “an authentic rage
which is not able to transform itself into a positive programme of socio-political
change”. This is precisely why, unlike the events in Greece and Spain and in dif-
ferent countries in the Middle East and North Africa, these riots are difficult to
analyse from the perspective of constituent power. Ibid. The Occupy Wall Street
protests are more promising in this respect, although their demands do not nor-
mally involve direct calls for constitutional change.
17 Costas Douzinas, ‘In Greece, We See Democracy in Action’, Guardian, Wednes-
day 15 June 2011. Available www.guardian.co.uk/commentisfree/2011/jun/15/
greece-europe-outraged-protests> (accessed 20 August 2011).
18 Ibid.
19 Ibid.
20 Ibid.
21 Ibid.
22 Antonios Bouchagiar and Mihalis Gousgounis, ‘Direct Democracy in Greece &
the 2011 Referendum’, Democracy International, 15 July 2011. Online. Available
www.mehr-demokratie.de/fileadmin/di/pdf/papers/Direct-Democracy-Greece-
2011-Referendum.pdf> (accessed 20 August 2011).
23 Antoni Domènech, ‘Mejor al Revés: ¿Cuál es la Alternativa Real al Movimiento
del 15 de Mayo?’, Sin Permiso, 22 May 2011. Online. Available www.sinpermiso.
info/textos/index.php?id=4183> (accessed 20 August 2011).
24 Enrique Santiago Romero, ‘Toda Revolución Necesita una Constitución’, Rebelión,
23 May 2011. Online. Available http://rebelion.org/noticia.php?id=128915>
25 Pablo Iglesias Turrión, ‘Llega la Hora de Generalizar la Desobediencia de los
Indignados’, Público, 21 May 2011. Online. Available www.lavozdeasturias.es/
politica/opinion_0_484751660.html (accessed 20 August 2011).
26 Iceland’s existing constitution, adopted in 1944, contains an amendment rule
(Article 79) that places the initiative and the drafting of constitutional changes
in the hands of the ordinary institutions of government: if a proposal for change
is adopted by the ordinary legislature, then a general election takes place and
only if the new legislature ratifies the proposal does it become constitutional law.
27 The Constitutional Council was composed of the 25 citizens originally elected as
members of a Constitutional Assembly. That election, however, was declared
void by the country’s Supreme Court (in a heavily criticised decision) due to
certain technical errors. As a result, the Althingi appointed those 25 citizens to
a Constitutional Council and attributed it with the functions of the Constitu-
tional Assembly.
28 For an overview of the process and the content of the draft constitution, see the
Constitutional Council official website: www.stjornlagarad.is/english/.
29 For example, the Constitutional Council cannot be understood as a means for
exercising constituent power. According to Article 114 of the draft constitution,
it can only present the draft constitution to the Althingi, which would have
the power to adopt it according to the amendment procedure established in the
Constitution of 1944.
30 See Articles 65–67 of the draft constitution, which provide citizens with the
right to present proposals to the Althingi by popular initiative and to trigger
binding referendums. Although it is unclear whether the popular initiative
can be used to present amendments to the constitution, Article 67 suggests that
it can only be used to present proposals for ordinary legislation (or to void an
ordinary law adopted by the Althingi): “Care shall be taken that a bill at the
initiative of the voters shall be in accordance with the Constitution.”
31 Article 113 of the draft constitution provides that amendments are to be
adopted by the Althingi and then submitted to popular referendum in order to
become valid (the referendum is not necessary if a 5/6 majority of Althingi
members vote in favour of the amendments).
32 The claim to a democratic pedigree would be limited in important ways by
the non-sovereign character of the Constitutional Council.
33 Sheldon Wolin, ‘Contract and Birthright’, Political Theory, 1986, vol 14(2),
p 192.
34 Ibid.
10 Conclusion
I stated in the introduction that contemporary constitutional theory has

turned its back on democracy, and my intention in the previous nine chapters
has been to present a constitutional theory that directly confronts the demands
imposed by the democratic ideal. In presenting such a theory, I attempted to
avoid the all-too-common route of providing an interpretation of the demo-
cratic ideal that weakens democracy in significant ways in order to make it
consistent with liberal constitutionalism. Instead, I defended a strong and
participatory conception of democracy, then took the unorthodox approach of
developing an alternative conception of constitutionalism – a ‘weak constitu-
tionalism’ – that can live up to democracy’s demands. The approach presented
here does not come accompanied with a promise of any final reconciliation
between constitutionalism and democracy. On the contrary, it recommends a
set of constitutional forms that make the tension between these two ideals
even more obvious. That is to say, it requires a constitution that remains
permanently open to future exercises of constituent power: a constitution
according to which a departure from constitutionalism is episodically
warranted and in which citizens are always free to exercise their democratic
right to (re)create the constitutional regime. Only such a constitution, I have
argued, would ever come to enjoy democratic legitimacy. The previous nine
chapters developed these ideas, and these are the main conclusions that follow
from them:
a. Constitutionalism and democracy cannot be brought to a final and happy

resolution: the former is about limiting political power, the latter about
an unlimited (popular) political power. As a result of this tension, the
democratic legitimacy of constitutional regimes is called into question.
b. Constitutionalism is characterised by an aspiration to the permanence of
the established constitution. Although constitutions are sometimes seen
as protecting the pre-conditions of democracy, they also establish struc-
tures and promote institutions that have little or no connection to the
democratic ideal, and that in many cases conflict with it.
c. Democracy at the level of daily governance must be distinguished from
democracy at the level of the fundamental laws. The first has to do with
Conclusion 187
the adoption of ordinary laws and the administration of a state’s bureau-
cratic apparatus; the second, episodical in character, with the ways a
constitution was created and the ways it can be changed.
d. Democratic openness and popular participation should be seen as the
basic principles of the democratic ideal. These basic principles require
that even the most fundamental provisions of a constitutional regime
can be questioned and revised through highly participatory procedures.
In the context of constitutional change, participation is not just about
voting, but also about being able to propose, deliberate and decide upon
the content of a constitution.
e. Constituent power not only means the unlimited power to create a
constitution, but also the power to create a constitution with others.
This power is not exhausted with the adoption of a constitution and can
be exercised at any time. Accordingly, it comes accompanied with an
important democratic component and is highly consistent with the basic
principles of democracy.
f. To say that a constitutional regime is legitimate is to say something
about how it arose and how it can be altered. Constituent power and
legitimacy come together in the idea of democratic legitimacy: a demo-
cratically legitimate constitutional regime should have a democratic
pedigree and must have an opening for constituent power to manifest
itself when important constitutional transformations are to be made.
g. Democratic legitimacy also requires that fundamental constitutional
changes take place through the most participatory procedures possible.
When a fundamental constitutional change takes place, an instance of
re-constitution occurs and the exercise of constituent power is required.
The judicial doctrine of ‘constitutional substitution’ exemplifies some of
the ways in which the distinction between ordinary and fundamental
constitutional change is already taken into account by some constitu-
tional regimes.
h. A constitutional regime can be consistent with those requirements only
to the extent that it is based on a weak form of constitutionalism, one
that does not see constituent power as a threat but that recognises the
necessity of keeping the constitutional regime permanently open. Such a
regime would be characterised by mechanisms that seek to facilitate the
exercise of constituent power, such as the Constituent Assembly
convened from ‘below’.
i. A constitutional regime that seeks to facilitate future exercises of
constituent power by adopting the types of mechanisms recommended
by weak constitutionalism would meet the basic condition of democratic
legitimacy (susceptibility to democratic re-constitution). However, in
order to be convened, these mechanisms necessitate a citizenry that,
through informal political practices, creates the environment for constit-
uent power to be activated.
188 Conclusion
In a way, all the main conceptions that have been explored through the
previous chapters (the principles of popular participation and democratic
openness, the second dimension of democracy, constituent power) provide
support for the same idea: that democracy requires constitutional regimes that
provide the citizenry with the means to engage in future episodes of demo-
cratic re-constitution. The conception of constitutionalism on which most
contemporary constitutional regimes rest is inconsistent with that idea.
Accordingly, only a conception of constitutionalism that does not aim at the
permanence of a constitution reputed to contain the right content can give
rise to a democratically legitimate constitutional regime. This conception,
which I call ‘weak constitutionalism’, approaches the post-constitution-
making exercise of constituent power not as a threat but as the potential real-
isation of democracy at the level of the fundamental laws. Constituent power
has been ignored by constitutional theory for too long and at a very high
price. My aim has been to produce a democratic constitutional theory, one in
which constituent power appears as a central theme and in which democratic
peoples, not constitutionalism or constitutionalists, dictate the content of the
constitution.
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Index
acclamation 88, 177; non-deliberative Bolivia 14, 162

acts of 177 Bonaparte, Napoleon 18, 25, 109
Ackerman, Bruce 11, 13, 39–40, 52n9, Brazil: Constitution of 127
70–1, 77n73, 110, 146n24 Brettschneider, Corey 24
alternabilidad 138 Brutus, Junius 81
amendmentitis 19 Burnheim, John 61
American constitutional theory 18,
97n50, 146n28 campaign finances 37
American Revolution 8, 80, 83, 87 Canada 2, 65, 79, 91, 99n96, 124n70,
anarchism 106 127, 140, 144n1; Supreme Court of
Anglo-American: constitutional theory 79, 140
3, 7, 18, 80; constitutional tradition Canadian Senate 37
13, 89, 115 Canovan, Margaret 62
anti-democratic: character 27, 49; capitalism 27, 68
sentiment 86 Castoriadis, Cornelius 58
apathy 63 Charles I 81
Arab Revolutions 14, 175, 178–180 citizens 2, 6–8, 10–13, 17–18, 20,
Arato, Andrew 88 22–5, 37, 91, 95, 99n96, 103–8,
arbitrary will 110–11 114–18, 121n29, 121n32, 124n74,
Arendt, Hannah 110, 112 126–7, 141–4, 144n1, 149n74,
Aristotle 132 152–6, 159–61, 164–8, 170n8,
aspiration to permanence 12, 18–22, 173n40, 173n43, 176–81, 184n27,
25, 31n26, 57, 64–6, 95, 139, 153, 185n30, 186; assemblies 38, 40,
156, 186 75n34, 61; juries 62–3, 163; ordinary
Athenian Assembly 61–2 1–2, 5, 19, 21–3, 25, 43–4, 49–51,
Athenian democracy 62 60, 65, 70–2, 72n1, 76n55, 108,
authority 13, 42, 48, 81, 93, 102, 115, 126, 152, 156, 162–4, 169n2,
106–7, 110, 114, 121n29, 122n45, 173n43
129–30, 135–7, 152, 158, 160 civil disobedience 14, 107, 114–15,
175, 178, 180–1
Bahrain 178–9 Cobbett, William 41
Barber, Benjamin 70, 121n38 Cohen, Joshua 61–2, 70, 115
basic income 26 collection of signatures 10, 46, 51,
basic structure: of constitution 67, 104, 161–3, 165, 172n33, 173n43,
133; doctrine of 133, 148n47; of 173n48, 176, 182
governance 27; of government 28, Colombia 67, 92–3, 132, 134–8, 140;
128, 166; of political power 108 Congress of 92–3, 149n74, 161;
Beetham, David 103–4 Constitution of (1886) 92–3;
Bodin, Jean 80–1 Constitution of (1991) 101n131,
204 Index
133–4, 143–4, 148n48, 148n49, 95, 99n96, 102, 110, 116–18,
161, 173n43, 178; Constitutional 126–9, 132, 134–5, 139–41, 145n8,
Court of 14, 78n82, 94, 133–4, 137, 145n10, 145n18, 148n49, 149n74,
166; Supreme Court of Justice 92, 94, 150n90, 153–8, 161, 165–6, 168–9,
100n121 169n2, 173n43, 174n48, 175,
commonwealth 51n1, 81–3; form of 178–81, 184n26, 187; distinction
the 82 between ordinary and fundamental
Commonwealth system 36 constitutional change 74n16, 127–8,
competence 94, 135 133–4, 139–41, 143, 162, 166, 187;
Conrad, Dietrich 90, 111, 145n14, 160 episodic nature of 2, 6, 186–7;
consent theory 105–8, 121n38, 177 fundamental 10–12, 14, 38–9,
constituent assembly 32n26, 32n31, 45, 74n6, 89, 91, 109, 117, 119, 126–8,
79, 89, 92, 113, 116, 119, 123n67, 133–4, 139–41, 143–4, 150n85,
125n83, 126, 133, 137, 148n47, 152–4, 156, 159–60, 162, 164–8,
148n48, 160–7, 170n8, 171n29, 170n7, 171n31, 176–8, 182–3, 187;
172n32, 178; convened from below popular participation in 3–5, 10, 20,
10, 14, 153, 160–8, 171n31, 22, 25, 29, 65, 70–1, 85, 139, 143,
174n45, 179, 182, 187 167; popular support for 92, 161,
constituent power 3, 7–11, 13–14, 18, 168, 176
21–2, 36, 39n32, 40, 47, 50–1, 73, constitutional convention 18–19, 31n15,
79–103, 109–19, 122n45, 123n70, 46, 66, 169n2; Article V of the
126–44, 146n31, 146n32, 148n57, United States Constitution 66, 76n48,
151n95, 152–69, 171n29, 174n49, 147n34, 161; periodic 18–9, 31n15
175–83, 186–8; activation of 14, 87, constitutional interpretation 3–5, 18,
113, 115, 157, 160–1, 175–83; 28, 44, 64–5, 112, 114, 145n14
collective character of 8, 89, 111, constitutional politics 13, 19, 39, 70,
115; delegated 88; destroying itself 77n73, 110
118; displacing 142; distinction constitutional regime: abolition of an
between activation and execution of established 80, 95
constituent power 14, 175–8, 181; constitutional rupture 91, 136–7
distinction between constituent constitutional significance 167
power and the right of resistance 8, constitutional substitution 127, 132–8,
80–83; doing away with 142–3; 144, 149n63, 187
execution of 14, 175–8, 181; hiding constitutional supremacy 17, 36, 46, 82,
142–3; legalising 142–3; limitations 133, 149n74, 162
of 103, 111–13, 132, 137, 147n36, constitutionalism: definitions of 3–4, 17
154; original 93–4; origins of concept constitutionalism-democracy debate 1,
of 80, 89, 97n50, 109; risks of 73, 4–5, 26, 29, 48, 64, 73, 79–80, 152,
95, 102, 109–14, 131 168, 186–7
constituted powers 84–6, 93–5, 97n50, constitution-making 6–7, 9–10, 14,
114, 127, 129, 131, 133, 135–7, 162 38–40, 46, 51, 52n8, 59, 86–7, 89,
constitution: abolition of a 58, 81, 91; 92–3, 102, 108–11, 115–18,
flexible 7, 17, 71, 142, 151n95; rigid 123n67, 124n79, 125n81, 125n83,
7, 12, 19–20, 28, 33n57, 71, 129, 126, 129, 143, 145n18, 154,
143; uncodified 25, 116; unwritten 5, 157–61, 169, 175–82
17, 20, 30n8, 32n33, 46, 59, 68, constitutive of democracy 2, 22–3, 26
71–2, 99n101, 126, 139, 142–3, constituyente primario see original
153, 156, 165–8, 169n7 constituent power
constitutional amendments: stringent Convention Parliament 157
requirements of 4, 19–21, 32n31, 44, co-originality thesis 24
47, 58, 60, 67, 91, 134, 136, 143 coup d’état 31n26, 92, 113
constitutional change 1–7, 9–14, Crown, the 90, 141, 157, 174n46
18–22, 26, 29, 39–40, 44, 46, 50, Crown-in-Parliament 90
58, 60, 64–7, 70–3, 83, 85, 88–92, Czech Republic 123n67
Index 205
Dahl, Robert 37, 51n1, 69–70 democratic openness 6–7, 11, 13,
day-to-day majorities 2, 17, 22, 64 57–60, 64–8, 76n55, 83, 91, 108–9,
de Malberg, Raymond Carré 85 111, 113, 116–18, 127, 131, 143,
de Vega, Pedro 72, 78n82 154, 159–60, 164–5, 183, 187–8
Declaration of the Rights of Man and democratic pedigree 9–10, 13, 23, 42,
Citizen 132 45, 108–9, 115–18, 182, 185n32,
delegates 116, 141, 156, 158–9, 161–4, 187
168, 170n8, 171n24, 172n40 Democratic People’s Republic of Korea:
delegation 170n8 Constitution of 34n58
deliberation 1, 23, 25, 27–8, 40, 48, 62, democratic re-constitution 2–3, 9–10,
70, 72, 75n31, 88, 113, 116, 163–4, 13, 36, 38, 46, 57, 103, 116–19,
173n40, 177, 180 125n81, 126, 155, 169, 181–2,
deliberative polls 62 187–8
democracy: abolition of 22, 39, 59, 63, democratic will 1, 27
102, 125n83, 164; balance with derecho politico see political law
constitutionalism 4, 48, 50, 79, 88, Dicey, A.V. 45, 89–90, 165–6, 174n46
94, 152–3; basic principles of 7, 13, dictator 58, 87, 109, 117
47, 51, 57, 73, 83, 95, 102, 126, dictatorial regime 40, 52, 59, 107, 109,
133, 154, 187; deliberative 61–3, 118, 136
173n40, 177; direct 40, 61–2, 69, dissent 7, 23, 58
75n34, 182; direct assembly 61, 63, doctrine of implicit limits 12–14,
86, 154; at the level of daily 127–8, 133, 135, 137, 139, 143,
governance 6, 11, 13, 29, 35–7, 39, 144n3, 146n28, 151n95, 155
45, 50, 59, 60, 62, 94, 154–5, 186; Dominican Republic: Constitution of
at the level of fundamental laws 6–9, 127
11–13, 20, 29, 35–51, 53n24, 57, Douzinas, Costas 180
59–60, 63, 67, 72, 85, 94–5, 102, dualist constitution 70
110–11, 114–15, 123n70, 127, 131, duty to obey 105–6, 114, 121n32
141, 152, 154, 158, 168, 183n3, Dworkin, Ronald 11–12, 21, 26, 36,
186, 188; a non-majoritarian 42–5, 50, 65
conception of 19–20; participatory Dyzenhaus, David 114, 122n45
conception of 5, 13, 55n64, 57, 60,
63, 69–70, 94, 138, 186–7; strong economic inequalities 26–7
conception of 5, 88, 186; two Ecuador 14, 32n31, 162, 171;
dimensions of 6–7, 11–12, 36–40, Constitution of 14, 32n31 162
50, 51n1, 59, 94, 154 Edwards v A.G. of Canada 65
democratic constitutional theory 1, 3, Egypt 178–9, 182–3, 184n15,
8, 152, 188 Eisgruber, Christopher 19–20
democratic constitutionalism 3–5, 50, elections 6, 35, 37, 67–71, 92–4, 142,
94 164, 171n28, 177, 182
democratic culture 60 elite 6, 46, 58, 73n1, 108, 110–11, 116
democratic ends 43, 59 entrenchment 12, 17–18, 21–3, 25–7,
democratic governance 6, 35–8, 40, 29, 32n38, 33n57, 59, 167, 174n45
44–5, 47, 49–50, 57, 67, 70, 72, 95, equal citizens 6–7, 73n1
113, 126, 158–9, 183n3 equal participation 71, 107
democratic legitimacy 2–3, 8–10, eternity clauses 20, 67, 112, 127, 133,
13–14, 36–7, 39–40, 63, 95, 102– 135, 137, 166
19, 122n42, 123n70, 124n74, European Central Bank 180
125n81, 126–7, 132–4, 139, 141, European Union 180
144, 152, 155, 160, 163–8, 170n7, experts 44, 53n39, 77n70, 117, 154, 179
175, 177, 179, 181–3, 186–7; basic extraordinary assemblies 14, 31n15,
condition of 13, 103, 115–17, 155, 157, 164; organised geographically
160, 163, 179, 182–3, 187 and/or thematically 164
democratic means 36, 38, 57, 59 extraordinary representatives 85, 113
206 Index
fear 5–6, 12, 18–21, 26, 37, 39, 57, Habermas, Jürgen 24–5, 33n50, 52n6,
102, 109, 112, 139, 156 62, 75n28, 116, 124n71, 124n77,
first dimension of the democratic ideal 146n32, 154, 183n7
see democracy at the level of daily Hamilton, Alexander 61
governance higher laws 17, 40, 44, 70, 110, 130,
Ford, Richard 27–8 132, 160
France 68, 84–6, 88; Constitution of 68, Holmes, Oliver Wendell 27
72, 84, 145n14 Holmes, Stephen 19–20, 23, 26, 58
Franco, Francisco 109 Honduras 32n26
freedom of association 1, 6, 23, 28, House of Lords 37, 140
34n58, 69, 130, 178 Huntington, Samuel 55n64, 69
freedom of conscience 23–4, 130
freedom of expression 1, 23, 25, 28, Iceland 14, 181, 183, 184n26;
34n58, 37, 40, 69, 118, 178 Constitution of 181, 184n26
Freeman, Samuel 131 ideology 18, 57, 68
French Revolution 8, 31n15, 80, 87 implicit limits to constitutional
Friedrich, Carl 97n43, 110–11, 113 reform 12–14, 127–8, 133, 135,
fugitive democracy 12, 47, 50 137, 139, 143, 144n3, 146n28,
Fuller, Lon 27–8 151n95, 155
Fung, Archon 62, 70 imposed constitutions 9, 39–42, 102,
fundamental laws 1, 5, 5–8, 11–13, 115, 117, 124, 126
20, 29, 36–40, 42, 47, 49, 51, India 67, 132–3, 137, 143, 147n40,
53n24, 57–58, 60, 63, 67, 72, 148n47, 172n38; Constitution of 67,
82–83, 85, 89–90, 94–95, 96n16, 132–3, 143; Parliament of 143;
102, 110–11, 114, 117, 123n70, Supreme Court of 133, 151n95
127, 131, 141, 143, 152, 154, 156, indigenous mobilisation 178
158, 160, 165, 168, 169n2, 183n3, inequalities 26–7, 49
186, 188 informal assemblies 14, 180–1
informal deliberative practices 62,
Gavison, Ruth 159 175–7
German Basic Law 67, 132–3 informal political practices 14, 155–6,
German Constitutional Court 32n39, 169, 175, 177, 182–3, 187
132, 147n35 International Monetary Fund 180
Germany 129, 132, 137, 147n40; Italy 67; Constitution of 67, 129
Constitution of 129, 133
Glorious Revolution 14 James II 157
God 81 Jefferson, Thomas 7, 18–19, 157
Goldsworthy, Jeffrey 13, 71–2, judicial review 3–6, 20, 29, 33n57,
99n101 34n74, 37, 41–2, 44–5, 61, 64–5,
government: abolition of 83, 170n16; 70, 77n71, 172n32, 173n43;
officials 1, 4–5, 7, 19, 27, 29, 35, 40, abolition of 5, 29
43, 48, 65, 69, 72, 89, 94–5, 104, judiciary 3–4, 21–2, 25, 28, 37, 43–6,
112, 114, 126, 138, 155, 164, 176, 64–5, 70–1, 71n77, 94, 130–2,
181, 183n3 134–5, 137, 140–1, 146n32, 166–7,
governmental abuse 11, 13, 80–3, 174n49, 175; unelected 65, 71
97n45, 155, 157, 163, 170n16, justification 8, 13, 21, 25, 102–6,
171n28 120n18, 120n26, 121n34, 133
governmental structure 17–19, 26,
28, 49, 65, 82, 112, 114, 117, Kalyvas, Andreas 8, 80, 101n122, 110,
128, 130, 141, 153, 155, 157–8, 112–13, 116, 124n79, 178
161, 166 Kant, Immanuel 105–6, 120n26
Greece 14, 67, 179–80, 183, 184n16; Kelsen, Hans 103
Constitution of 67 Kesavananda Bharati v Kerala 133,
guerrillas 92–3, 101n125 151n95
Index 207
La Fayette, Marqués 97n50 Loughlin, Martin 91, 100n112, 113
Latin America 3, 8, 10, 34n68, 51, 80, Lycurgian 17, 19–21, 39, 66–7, 144
89, 91, 94, 109, 136, 148n57,
150n90, 153, 160, 173n43 Macpherson, C.B. 69
Latin American: constitutionalism 8, Madison, James 18–20, 31n18, 66
10, 13, 34n68, 51, 80, 89, 91–2, 94, main demands 115, 179
109; constitutional tradition 13, 89, majority rule 11, 20, 32n31, 35, 41–2,
92, 94; left 8 58, 60, 79, 113, 130, 140, 150n85
lawlessness 110–11, 114 manipulation 48, 161
Lawson, George 8, 13, 51n1, 80–6, Marx, Karl 23
89–90, 96n12, 96n16, 97n45, Michelman, Frank 24–5, 28
100n112, 145n13, 146n32 Middle East 175, 178–80, 184n16
lawyers 59, 103, 150n80, 180 Minerva Mills v Union of India 133,
Le Chapelier, Isaac 18 151n95
Lefort, Claude 58 minority protection 1, 112
legal constitution 167 Morgan, Edmund 83, 90
legal continuity: break in 136
legal validity 9, 103, 170n8, 172n32 nation 84–5, 90, 93, 98n70, 100n121,
legislative minority 27, 166, 168 102, 111
legislative supermajorities 7, 20, 27, Nazism 128
32n31, 41, 43, 45, 47, 66–8, 77n71, Negri, Antonio 8, 102, 119n1
127, 162 New York Convention 158
legislature 2, 5, 11, 19, 22, 25, 29, New Zealand 25, 30n8, 32n33, 45–6,
31n15, 35, 37–8, 44–5, 47, 53n24, 54n56, 68, 76n54, 141–2, 150n85,
61, 66, 70–1, 75n32, 76n48, 79, 82, 169n7, 171n23
84–5, 90, 114, 117, 119, 123n67, Nicaragua: Constitution of 161
126, 130, 133, 137, 140–3, 147n34, non-delegates 163–4
153, 155–64, 171n23, 173n43, 176, North Africa 175, 178–80, 184n16
182, 184n26; abolition of 167, Norway 67; Constitution of 67, 129
171n23; as constituent assembly in Nye, Joseph 69
permanent session 119
legitimacy of judicial review of obedience 103, 105, 120n26, 121n29,
legislation 3–4 121n38
Levinson, Sanford 71, 169n2 old constitutions 9, 22, 116, 131
liberal constitution 2–3, 21, 26–8, 43, Opinion 551/03 133–4, 137
46, 72, 79, 92, 112, 163 Opinion C-141/10 78n82, 138
liberal constitutionalism 14n1, 18, ordinary constitution-making
34n64, 48–9, 86, 91, 139, 186 institutions 22, 141, 167
liberal democracy 5 ordinary laws 6, 12, 17, 20, 22, 25, 28,
liberty 27–8, 73n1, 82–3, 130, 133, 32n33, 35–8, 41, 44, 66, 72, 86, 89,
149n71 94–5, 123n67, 129, 157, 169n7,
Libya 178–9; Transitional National 187; distinction between ordinary and
Council of 183n10 constitutional law 14, 19, 40, 44–6
limits: self-imposed 9, 93, 112, 116, ordinary representatives 38, 84, 159,
131 171n24
living-tree constitutionalism 13, 64–5, Otis, James 157
71, 76n46 the outraged 180–1
Lochner 27 Owen, Sir Roger 82
Locke, John 8, 13, 80–4, 86, 96n34,
97n43, 97n45, 100n112, 105, parliamentary sovereignty 5, 11, 13, 20,
120n21, 123n65, 130–1, 146n31, 35–6, 40, 45–6, 54n46, 59–60,
155, 157, 170n16 71–2, 80, 82, 89–91, 99n101, 129,
Lord Cooke 141 142, 145n13, 150n83, 153, 156,
los indignados see the outraged 158, 167, 174n49
208 Index
parliamentary supremacy 44 positive law 10, 79–80, 84–6, 95, 102,
partial revision 11, 67, 141 110, 116, 126, 162
partnership view 42–4 Post, Robert 65
party 90 power of command 80–1
Pateman, Carole 70 power to strike down legislation 21–2,
the people 1, 4, 7–8, 11, 13–14, 19, 45, 132, 134, 166
21–2, 24, 31n15, 32n39, 35, 37, pre-commitment 20, 58
39–42, 44–8, 52n9, 54n45, 57–9, Preuss, Ulrich 88, 111, 113
61, 68, 70–2, 77n77, 79–83, 85–91, principles 6–7, 9, 11–13, 17–18, 20–2,
93, 95, 97n45, 97n50, 98n87, 102, 26, 32n39, 37, 42–7, 51, 57–72;
109–12, 114, 116, 118–19, 124n75, fundamental 2, 7, 18, 67; abolition of
127, 130–1, 133, 135, 137–43, constitutional 145n11, 146n32
145n15, 152–3, 156–61, 167–8, private property 23–4, 26–7, 34n68
169n1, 169n2, 170n8, 170n16, private sphere 2, 23–4
171n28, 173n42, 173n43, 176–9, procedural democracy 6, 12, 29, 35–6,
182, 183n3 41–5
people’s trust 8, 80, 83 proceduralists 36, 41
people’s veto 72, 166 proportional representation 29, 37, 163
Peters, Onslow 158 protest 14, 93, 115, 175, 178–82
philosopher 103–6, 128, 180 public autonomy 24
Pinochet, Augusto 109 pyramidal system 69
the political 48–9, 55n68
political associations 6, 69 radical democracy 62, 112
political campaigns 25, 37, 159 random selection 62, 75n31, 75n34,
political culture 3, 9, 26, 57, 59, 116, 77n71, 163, 172n40, 180–1
140 real majesty 81–2, 96n12
political decisions: fundamental 86–7, rebellion 83
128–9, 136, 145n10 Reference re Secession of Quebec 79
political influence 27 referendum 2, 10, 21, 32n31, 39, 40,
political law 91 44, 46, 51, 54n53, 54n54, 54n55,
political parties 6, 34n58, 37, 48, 69, 62–3, 66–8, 72, 75n31, 75n32,
92, 94, 134, 159 76n54, 78n77, 78n82, 79, 88, 90–1,
pollsters 69 115–16, 118, 126, 133, 134, 137–8,
polyarchy 37, 69–70 141–4, 149n71, 150n85, 154,
Polybius 49 156–9, 161–8, 173n43, 174n46,
popular assembly see citizens assembly 174n48, 174n49, 179–82, 183n12,
popular constitutional change 3, 20, 22, 185n30, 185n31
139 Referendum Act 90, 165
popular initiative 38, 40, 63, 72, representative democracy 54n42, 61, 63,
74, 138, 162–3, 167, 173n43, 75n31, 165
185n30 representative institutions 1, 12, 37–8,
popular majorities 2, 4–6, 18, 23, 53n24, 63, 74n16, 84, 156, 163,
25, 40, 65, 72, 73n1, 160, 168–9, 170n8, 172n40
176–8, 180 representatives 1, 4, 21, 37, 40–4, 69,
popular participation 3, 5–7, 9–11, 13, 79, 81–2, 84–6, 90, 94–5, 97,
21, 38–9, 46, 49–50, 57, 60–5, 98n70, 113, 127, 159, 170n8,
68–73, 83, 91, 108–9, 111, 113, 171n24
115, 117–18, 124n77, 125n83, 127, repression 179
141–3, 154–5, 160–1, 163–5, 168, republicans 24
169n2, 174n49, 183, 187–8 Reschstaat 128
popular sovereignty 8, 36, 39, 80, 88, revolution 8, 10, 14, 18, 39, 48,
102 76n46, 80, 83, 87, 91–2, 95, 102,
Popular Sovereignty Initiative 70 110, 113, 129, 131, 157, 178–80,
populist 3, 40, 52n10, 73n1 184n15
Index 209
rights 1–2, 8, 10–12, 17–18, 21–9, self-government 20, 24, 46, 53n24, 60
33n40, 33n41, 33n50, 33n57, self-rule 6, 24, 52n10, 58, 73n1, 111
34n71, 35, 38, 40–7, 51, 51n1, séptima papeleta see seventh ballot
58–9, 64, 67, 69, 71–2, 74n9, seventh ballot 92
74n15, 80–4, 90, 93–5, 95n2, Siegel, Reva 65
97n45, 103, 105–7, 110–12, Sieyes, Emmanuel 7–8, 13, 31n15, 80,
117–18, 120n26, 121n29, 121n38, 83–8, 90, 93–5, 97n45, 97n50,
124n75, 127–8, 130–2, 138, 140–1, 98n70, 98n81, 111, 113–14, 155
147n36, 148n47, 150n82, 150n85, Simmons, A. J. 13, 105–8, 120n26,
152–4, 157–8, 162, 164, 166, 121n28
170n16, 174n43, 174n46, 178–9, size and complexities of modern
185n30, 186; abolition of institutions societies 38, 48
and 10, 22, 25–6, 40, 95, 111, Slovak Republic 123n67
118–19, 141; best decisions about social contract 8, 31n15, 83, 87, 96n34
42; constitutional 1, 21–2, 44–5, social movement 23, 27, 64, 75n28,
140; democratic 18, 24, 26–9, 152, 93–4, 163, 169
186; fundamental 17, 21–6, 33n40, social scientists 103–4
35, 38, 64, 67, 69, 95, 128, 131, South Africa 99n94, 123n67, 172n32;
140–1, 148n47; individual 23–5, 43, Constitution of 99n94, 150n88
127, 179; political 10, 18, 23–5, sovereign: the electors as true 81, 90,
33n40, 33n41, 38, 130, 154, 179; of 99n105
political participation 10, 23, 41–5, sovereignty 5, 8, 11, 13, 20, 35–6,
69, 71–2, 118, 130; to privacy 23–4; 39–40, 45–6, 51, 58–60, 71–3,
property 23–4, 26–7, 120n26; of 80–2, 84–91, 93–5, 99n101,
resistance 8, 67, 80–4, 97n45, 110; 99n105, 101n122, 102, 110, 113,
to rule 105–7, 111, 121n29, 121n38; 122n45, 129, 131, 141–2, 145n14,
social and economic 18, 24–5, 94, 148n57, 152–3, 156, 158, 162,
117; to vote 1, 23, 26, 33n41, 41, 69, 166–7, 171n28, 180
118, 130, 150n82, 150n85 Spain 14, 109, 123n67, 179, 181, 183,
risk 18–19, 59–60, 102, 109–14, 184n16; Constitution of 67, 141
122n45, 174n48, 179 special conventions: superiority of 158
Rousseau, Jean Jacques 31n15, 54n52, state conventions 32n31, 66, 123n67,
62, 68, 88 158, 161, 165–6
rule by the people 6- 7, 20, 22, 24, 35, state of exception 92–3, 101n123
48, 52n10, 57–9, 73n1 state of nature 84–5, 87, 96n32, 105,
rule of law 17–18, 59, 79, 122n45, 130, 120n26
140, 145 status quo neutrality 27, 58
Russia: Constitution of 72 student demonstrations 178
substantive democracy 6, 41–5
Sabel, Charles 61, 70 substantive limits 10, 67, 118, 132,
Scheuerman, William 87 134–6, 160
Schmitt, Carl 7–8, 13–14, 80, 83–8, substantivists 36, 41–2
92, 94–5, 97n45, 98n81, 98n87, Sullivan, Kathleen 19, 31n24
101n122, 111, 113–14, 127–37, Sunstein, Cass 27
140, 145n10, 145n18, 149n65, 155, superiority of special conventions 158
162, 170n8, 170n14, 175–81, supermajorities 7, 20, 27, 32n31, 41,
183n3, 183n7 43, 45, 47, 58, 66–8, 77n71, 127,
Schneiderman, David 26 162
Schumpeter, Joseph 68–9, 77n62 supreme bill of rights 21, 26
secession 79, 123n70 Syria 178–9
second dimension of the democratic
ideal see democracy at the level of Tocqueville, Alexis de 45, 89
fundamental laws total revision 67, 129, 141, 145n15,
Second World War 68, 171n22 149n65
210 Index
Tunisia 178–9, 183n11 Venezuela 14, 79, 121n67, 124n75,
two-thirds majority 32n31, 66–7, 70, 138, 140–1, 150n90, 162, 171n31;
76n48, 142, 147n34, 162 Constituent Assembly of 14, 121n67,
tyranny 43–4, 77n71, 84, 97n50 124n75, 141; Constitution of
125n75, 138, 150n90, 172n33;
unamendable constitutional clauses 127, Supreme Court of Justice of 79,
133, 136 92, 95n4, 100n120, 147n36,
unanimity 41, 140, 142 153–4, 162
Unger, Roberto Mangabeira 63–4, 73 violent 59, 61, 110
United Kingdom 2, 21, 30n8, 32n33,
45–6, 54n54, 68, 89–90, 127, 142, Waldron, Jeremy 11–12, 21, 36,
158, 166, 169n7, 184n16; 2011 riots 41–2, 44–6, 50, 53n24, 53n26,
184n16 54n41, 54n42, 54n45, 59, 61,
United States of America 2, 4–5, 19, 28, 71, 107
31n15, 32n31, 34n74, 37, 46, 58–9, Waluchow, Wil 13, 64–5, 76
66, 70, 77n71, 77n73, 91, 99n94, weak constitutionalism 3, 5, 7, 10–12,
99n96, 123n67, 127, 150n8, 158, 14, 118–19, 144, 153–6, 158, 160,
173n43; Congress of the 32n31, 66, 165, 168–9, 169n2, 175, 178, 180,
70, 76n48, 76n52, 130, 144n2, 182, 186–8
146n28; Constitution of the 4, 19, Weber, Max 104, 115, 121n37
27, 30n10, 32n31, 66, 76n47, 91, Weimar Constitution 74n14, 86, 128
130, 143, 147n34, 150n80, 158, Wolff, Jonathan 44
161, 171n23; constitution Wolin, Sheldon 12, 36, 47–50, 55n68,
amendment rule 4; Declaration of 58, 77n70, 159, 182
Independence 87; Senate of the 71;
Supreme Court of the 34n74, 52n9, Yemen 178–9
70–1, 75n41, 130, 146n28 Young, Thomas 97n50
universal suffrage 38, 101n125, 127
Urbinati, Nadia 61–2 Žižek, Slavoj 184n15

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Weak Constitutionalism

Joel I. Colón-Ríos is Senior Lecturer in Law at Victoria University of

Available titles in this series include:

Forthcoming titles in this series include:

Constitutional Amendment in Europe, Canada and the USA

ISBN: 978-0-415-67190-3 (hbk)

“The birth of constitutional democracy in regions of the world thought to be on the

1 Introduction: towards a weak constitutionalism 1

2 The end of constitutionalism 17

3 The second dimension of democracy 35

6 The idea of democratic legitimacy 102

7 The transformation of the juridical 126

8 The beginnings of weak constitutionalism 152

9 Activating constituent power 175

Democracy and the fundamental laws

Outline of the argument

There are many definitions of constitutionalism. These definitions usually

The aspiration to permanence (or the fear of

Constitutionalism as the protector of democracy

Politics, individuals and democracy

Beyond ‘democratic rights’: the extra-democratic effects

Judges honouring claims to constitutional protection for freedoms of

Perhaps more importantly, judicial interpretations of rights become part of

When someone is asked to identify a constitution as ‘democratic’ or ‘not

The two dimensions of democracy

Democracy at the level of the fundamental laws

Ignoring the second dimension of democracy

The second dimension of democracy: approaching

Wolin’s approach to democracy needs to be understood in the context of his

In the previous chapter I argued that the second dimension of democracy is

The principle of democratic openness

The principle of popular participation

Negating democratic openness

Negating popular participation

The constitutionalism–democracy dilemma – the idea that constitutionalism

Locke and Lawson: constituent power or right

Constituent power in contemporary constitutionalism

Constituent power, it has been suggested in previous chapters, has an impor-

The idea of legitimacy

Towards a conception of democratic legitimacy

Democratic legitimacy and the risks of constituent power

The conditions of democratic legitimacy

Not all constitutional regimes emerge out of democratic constitution-making

Schmitt and Rawls on the limits of constitutional reform

The boundaries of the authority for constitutional amendments result

Rawls reached a similar conclusion in Political Liberalism, where he embraced

The judicial doctrine of constitutional substitution

Constituent power should be understood as the ‘missing link’ in the debate

Exercising constituent power or weak

Of constituent assemblies convened from below

Constituent assemblies and unwritten constitutions

Weak constitutionalism and democratic legitimacy not only demand a consti-

The activation/execution distinction

Of revolutions, informal assemblies, and other protests

I stated in the introduction that contemporary constitutional theory has

a. Constitutionalism and democracy cannot be brought to a final and happy

Abensour, Miguel, ‘ “Savage Democracy” and “Principle of Anarchy” ’, Philosophy

acclamation 88, 177; non-deliberative Bolivia 14, 162

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