The Two Faces of Constituent Power

– Ming-Sung Kuo

The Indian Supreme Court has received increasing attention from comparative constitutional lawyers for its activist role and innovative jurisprudence.  Among its doctrinal inspirations is the basic structure doctrine, which was established through a series of decisions in the 1960s-70s.[1] As part of the story about the continuing enhanced role of the judiciary in constitutional politics, the notion of unconstitutional constitutional amendment is no longer a theoretical construct but rather has grown into a widely accepted judicial doctrine with common reference to the basic structure doctrine.

Tracing its roots back to constitutional thinking preceding the jurisprudence of the Indian Supreme Court, the doctrine of unconstitutional constitutional amendment is premised on the distinction between constituent power and constituted power.  The exercise of the constituent power gives birth to a new constitution whose amendment must be conducted within the constituted framework given by the constituent power itself.  Seen in this light, the constituent power sits above the power to amend the constitution in a hierarchical structure, if you will.  Constitutional amendment is no longer the revision of the existing constitution and thus unconstitutional from the internal perspective of the latter when it changes the latter’s identity, exceeding the limits set by the constituent power.[2]

Read through the above lens, the doctrine of unconstitutional constitutional amendment is aimed at defending the constituent power by guarding its creation, namely the constitution, against the encroachment from the ultra-vires exercise of the constituted power to amend the constitution.  Thanks to this judicial doctrine, constituent power, in the hands of the guardians of the constitution, is turned into something that can be imagined and is to be preserved but can hardly be actualized.  As a result, constituent power becomes the object of worship and fear at once.  What makes it an object of constitutional worship?  Who fears constituent power?  Which one is the real face of constituent power?  What does it tell us about the state of comparative constitutional law?  To shed some light on these questions, I am telling a brief tale of the two faces of constituent power.

Constituent Power as a Progressive Idea

What makes constituent power the object of constitutional worship is its close ties to modern constitutional movements over the past two and a half centuries.  With the political order disparaged as the ancien régime in the eighteenth century, the object of political revolution is no longer the lost past to be brought back.  Freedom is not something akin to the past glory that can be regained by returning to the ancient constitution.  Rather, revolution takes on a new meaning.  Instead of looking to the past for liberation from the yoke of the corrupt ancien régime, it looks forward to beginning a new political order in which the tree of liberty and freedom blossoms.  To turn revolutionary ideals into enduring reality, a revolution needs to be concluded with the making of a constitution.  As the history of revolutions shows, a permanent revolution that fails to deliver a constitution whereby political power is framed instead of formless sparks endless bloodbaths without sowing the seeds of freedom.  Put bluntly, a successful revolution is always a constitutional revolution.[3]  As that which gives birth to a constitution that concludes a revolution, the constituent power is ‘radically creative’ and thus considered ‘the most faithful expression of the democratic ideal’, or rather, ‘the pure expression of an outpouring of will, of absolutely naked power unconditioned by the past’.[4]

Steeped in the revolutionary tradition of modern constitutional movements, constituent power has thus been associated with the idea of radical democracy.  It has served as the rallying call for democratic movements to bring down dictatorships and other authoritarian regimes in history.  Being innovatively re-imagined and re-framed as social forces that irritate the status quo, constituent power is no longer tied to those self-appointed revolutionary vanguards indeed.[5]  Even so, constituent power is nothing less than progressive as it is transfigured into the impetus for constitutional transformation and democratic contestation.[6]

As the world is seen entering the global era with the Westphalian order of sovereign states evolving into a post-national constellation, constituent power does not fade into the background of contemporary constitutional debates.  Rather, it stands at the centre of the debate as to whether the global era marks a new age for constitutionalism being projected beyond nation-states or portends the end of the project of constitutional progress.  For those who aspire to global constitutionalism, constituent power is not abandoned but variously reworked as the underpinning of the new constitutional project in the global era.[7]  Though it is not without doubt whether such a reworked concept of constituent power is still constituent, the idea of constituent power continues to speak to the persistent quest for progress.[8]  This is the face of constituent power emerging in the works of constitutional theory and political history.

Constituent Power as Part of a Conservative Doctrine

Paralleling its long tradition in constitutional theory and political history, constituent power has recently seen a renaissance in judicial decisions and studies of comparative constitutional law.  In contrast to its foreground role in progressive politics in the first strand of the constitutional corpus, constituent power fades into the background in the second strand.  It is not hard to understand.  Judicial decisions and studies of comparative constitutional law are not so much concerned with the politics that shapes the law of the constitution as with the legal issues arising under the constitution itself.  After all, constituent power sits closer to constitution-making politics than constitutional law.  Even so, constituent power does play a role in this new wave of comparative constitutional law.  As part of the judicial doctrine of unconstitutional constitutional amendment, constituent power shows its other face.

As noted in the beginning, discussion on unconstitutional constitutional amendments has a long tradition.  Most of the discussion stayed at the theoretical level.[9]  When the question of unconstitutional constitutional amendment was even raised before the court, it was mostly resolved that the impugned constitutional reform passed constitutional muster.  In this period, the idea of unconstitutional constitutional amendment was floated and discussed without much fanfare.  Yet, the doctrinal and theoretical groundwork was laid for the global migration of the jurisprudence of unconstitutional constitutional amendments that has surged in the past generation.  The ascendency of judicial power in the new era of constitutionalism is noticeably associated with the global spread of democratic and more or less liberal constitutionalism.  When constitutional amendments are questioned and brought before the courts, they face more exacting scrutiny since the guardians of the constitution become more and more assertive vis-à-vis the political branch of the government and other political forces.  With more and more constitutional amendments declared unconstitutional around the globe, discussion of unconstitutional constitutional amendments is no more notional out of pure scholarly interest.  Rather, it grows into one of the star doctrines shining through the global constitutional landscape.[10]

But where is the constituent power to be found?  Everywhere in the new global constitutional landscape populated by the doctrine of unconstitutional constitutional amendment.  Let me explain.  As noted in the beginning, the doctrine of unconstitutional constitutional amendment is premised on the distinction between constituent power and constituted power.  A constitutional amendment must stay within the confines of the basic structure set by the constituent power, or it would amount to the usurpation of the constituent power and thus be unconstitutional.  In this line of reasoning, the concept of constituent power is invoked not to irritate the political status quo but rather as part of the judicial doctrine to maintain the constitutional status quo of liberal democracy.  Correspondingly, constitutional amendments that are meant to remake the constitution in the name of awakened constituent power are seen as the de-stabilizer of the basic structure of the existing constitutional order.  Such pseudo-constituent power must be suppressed.  While the historical constituent power becomes the object of constitutional worship, the self-claimed returning constituent power is to be feared as it is seen to bring down the existing constitutional order.  Taken together, no constitutional change taking the form of constitutional amendment can escape judicial attention as the court is mandated to guard the fruit of the constituent power.[11]  In this sense, constituent power is more conservative than progressive inasmuch as the constitutional order switches to the defensive mode.  Riding the global wave of the doctrine of unconstitutional constitutional amendment driven by the judiciaries and comparative constitutional lawyers, constituent power has traveled across the globe, although it is more like a shadow figure.  In the background of the star doctrine of unconstitutional constitutional amendment appears the second face of constituent power.

Hello Judges, Goodbye the People!

What does my brief tale of the two faces of constituent power tell us?  Or rather, what does it tell us about the state of comparative constitutional law?  The first face of constituent power as a progressive idea continues to gain traction in constitutional and political theory, whereas the second face of constituent power is more conservative as imaged in the global jurisprudence and comparative studies of unconstitutional constitutional amendments in constitutional democracies.  A juxtaposition of the two strands suggests that the concept of constituent power transcends theory and bears on constitutional practice by way of juridification.  As noted above, under the doctrine of unconstitutional constitutional amendment, no constitutional change taking the form of constitutional amendment can escape judicial scrutiny.  In other words, no constitutional change in the guise of constitutional amendment can lay legitimate claims to the exercise of constituent power in constitutional democracies.  As a corollary, the amendment procedures are off limits to the constituent power.  Put bluntly, the constituent power is forbidden to situate itself in the existing procedures and institutions.[12]  On this view, constituent power is no more ‘[an] absolutely naked power unconditioned by the past’ as Pierre Rosanvallon notes.[13]  Instead, it is conditioned by its exclusion from the existing procedures and institutions.  This view of constituent power mirrors the increasing juridification of the constitutional project.

Juridification has many meanings and has already received much discussion.[14]  For my present purposes, suffice it to note that juridification may serve the purpose of taming the fearful beast of constituent power, which, without constraints, may result in unruly power grab and destabilize constitutional democracy.[15]  Yet, as a function of politics, constituent power is fact in essence and thus it transcends any prescribed form by definition.  The normative form the judiciaries of constitutional democracies have tried to give to constituent power—which, to activate the constituent power, must take the shape other than the existing amendment procedures—can only contain the charlatans.  When the authentic exercise of constituent power comes about, even that normative form will certainly be pushed aside.[16]  The judiciaries will have no problem telling the arrival of constituent power from its imposters when push comes to shove.  Constituent power as a progressive idea seems to be able to find its place in the much tamed constitutional landscape but with a catch: it is the court that decides on whether constituent power has arrived in the form of amendment.[17]  The judicialization of the constituent power is the last step towards perfecting juridification in constitutional democracies.  Hello judges, goodbye the people!


The author is an Associate Professor of Law at the University of Warwick, UK.

References:

[1] Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Power (Oxford: Oxford University Press, 2017) 43-45.

[2] Ming-Sung Kuo, ‘Reconciling Constitutionalism with Power: Towards a Constitutional Nomos of Political Ordering’ (2010) 23 Ratio Juris 390, 397-98.

[3] Ulrich K Preuss, Constitutional Revolution: The Link between Constitutionalism and Progress (Deborah Lucas Schneider tr, Atlantic Highland, NJ: Humanities Press, 1990).

[4] Pierre Rosanvallon, Democratic Legitimacy: Impartiality, Reflexivity, Proximity (Arthur Goldhammer tr, Princeton, NJ: Princeton University Press, 2011) 124.

[5] Martin Loughlin, ‘The Concept of Constituent Power’ (2014) 13 European Journal of Political Theory 218-37; see also Andrew Arato, The adventures of the Constituent Power: Beyond Revolutions? (Cambridge: Cambridge University Press, 2017) pts II-III.

[6] Andreas Kalyvas, ‘Popular Sovereignty, Democracy, and the Constituent Power’ (2005) 12 Constellations 223-44.

[7] See ‘Symposium on Constituent Power’ in (2016) 14 International Journal of Constitutional Law 608-711.

[8] Compare Nico Krisch, ‘Pouvoir Constituant and Pouvoir Irritant in the Postnational Order’ (2016) 14 International Journal of Constitutional Law 657-79, with Alexander Somek, ‘Constituent Power in National and Transnational Contexts’ (2012) 3 Transnational Legal Theory 31-60.

[9] See, eg, Carl Schmitt, Constitutional Theory (Jeffrey Seitzer tr & ed, Durham, NC: Duke University Press, 2008) 150-58.

[10] See generally Roznai (n 1).

[11] See generally Richard Albert, ‘Constitutional Amendment and Dismemberment’ (2018) 43 Yale Journal of International Law 1-84. Cf. Roznai (n 1) 130-31.

[12] Roznai (n 1) 131

[13] Rosanvallon (n 4) 124.

[14] See, eg, Gunther Teubner (ed), Dilemmas of Law in the Welfare State (Berlin: de Gruyter, 1986).

[15] Cf. Antonio Negri, Insurgencies: Constituent Power and the Modern State (Maurizia Boscagli tr, Minneapolis, MN: University of Minnesota Press, 1999).

[16] See Mark Tushnet, ‘Peasants with Pitchforks, and Toilers with Twitter: Constitutional Revolutions and the Constituent Power’ (2015) 13 International Journal of Constitutional Law 639-54.

[17] See generally WT Eijsbouts, ‘Wir Sind Das Volk: Notes About the Notion of “The People” as Occasioned by the Lisbon-Urteil’ (2010) 6 European Constitutional Law Review 199-222.

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