Constitution-making has been part of political life since the 18^th century.  Today it is no longer a royal exercise to be completed by a stroke of pen.  It is touted as a foundational political act in a nation’s quest for a new political life.  It is an enterprise that looks to a set of techniques for its success.  As countries around the globe set out on constitution-making (see here, here, and here, for example), not only have its required techniques received attention in the literature but its conceptual underpinning- constituent power- has surged as one of the most discussed subjects in constitutional theory and comparative constitutional studies.  This wave of scholarly engagement does not bring about a renaissance of the concept of constituent power, though.  Rather, prompted by global exercises in constitution-making, the literature is dominated by the question of how to tame constituent power (see here, here, and here, for example).  Calls are now being made for abandoning the theory of constituent power.

Yet the concept of constituent power is still very much alive, thanks to the global migration of the doctrine of unconstitutional constitutional amendment in comparative constitutional jurisprudence (see here, here, and here, for example).  Tracing its roots back to constitutional thinking preceding the Indian Supreme Court’s much discussed ‘basic structure doctrine’, the jurisprudence of unconstitutional constitutional amendment is premised on a fundamental distinction between the concepts of 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.  From the ‘internal’ perspective of the existing constitutional order, a constitutional amendment is no longer revision when it changes the existing constitution’s identity.  Exceeding the limits set by the constituent power, an identity-altering ‘amendment’ amounts to what Richard Albert calls a ‘constitutional dismemberment’ rather than a revision of the existing constitution.

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 encroachment from the ultra vires exercise of the constituted amending power to transform the constitution’s identity.  Yet, under this judicial doctrine, the concept of constituent power does not really see its golden era.  Rather, the constituent power conceived in the doctrine of unconstitutional constitutional amendment is as tamed as the recent literature on constitution-making has hoped for.  In the hands of the judicial guardians of constitutions around the globe, the constituent power is invoked to guard its creation, the existing constitution, against allegedly identity-altering political forces in the guise of constitutional amendment.  In the meantime, the ostensible identity-altering forces that bring about an unconstitutional constitutional amendment are only seen as the historical constituent power’s present usurper or imposter.  Seen in this light, the constituent power exists as something that can be imagined and is to be preserved by the judicial guardian but can hardly be experienced under the existing constitution.  As a result, the constituent power becomes the object of worship and fear at once, echoing the tamed version of constituent power in the enterprise of constitution-making.  So, what makes the constituent power an object of constitutional worship?  Who fears the constituent power?  Which one is the constituent power’s real face?  What does it tell us about the state of comparative constitutional law?  To shed light on these questions, this post tells a brief tale of the two faces of the 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 unformed sparks endless bloodbaths without sowing the seeds of freedom.  Put bluntly, a successful revolution is always a constitutional revolution.  As the element which gives birth to a constitution that concludes a revolution, constituent power, in Pierre Rosanvallon’s words, 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’.  

Steeped in the revolutionary tradition of modern constitutional movements, constituent power has thus been associated with the idea of radical democracy.  It gives expression to democratic movements that have helped bring down dictatorships and other authoritarian regimes in history.  Being innovatively reimagined and reframed as social forces that irritate the status quo, constituent power is no longer tied to those self-appointed revolutionary vanguards.  Even so, constituent power is nothing less than a progressive idea as it is transfigured into the impetus for constitutional transformation and democratic contestation.  

Notably, even when the world was once seen entering the global era with the Westphalian order of sovereign states evolving into a postnational constellation before the resurgence of populist politics, constituent power did not fade into the background of contemporary constitutional debates.  Rather, it has since stood 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.  Although 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.  This is the face of the constituent power emerging in the socio-legal works of constitutional ordering. 

Constituent Power as Part of a Conservative Doctrine

As noted in the beginning, paralleling the current post-constituent turn in the literature on constitution-making, constituent power has recently seen a renaissance in judicial decisions and comparative constitutional studies.  In contrast to its foreground role in progressive politics in the first strand of constitutional scholarship, constituent power fades into the background in the second strand.  It is not hard to understand.  Judicial decisions and comparative constitutional legal studies 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, the 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 studies.  As part of the judicial doctrine of unconstitutional constitutional amendment,  constituent power shows its other face.

Notably, discourse on unconstitutional constitutional amendments has a long pedigree.  Most of the past discussion stayed at the theoretical level.  When the question of unconstitutional constitutional amendment was even raised before the courts, it was mostly resolved that the impugned constitutional reform passed constitutional muster.  During the first two decades in the post-World War II era, the idea of unconstitutional constitutional amendment, far from a global canon as we know it, was floated and discussed without much fanfare.  Yet the doctrinal and theoretical groundwork was already 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 constitutions 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 in countries such as Bangladesh, Colombia, Cyprus, India, Israel, Kenya,Malaysia, Slovakia, Taiwan, and Türkiye, discussion of unconstitutional constitutional amendments is no longer merely notional or a subject of pure scholarly interest.  Rather, it grows into one of the star doctrines shining through the global constitutional landscape.

But where is the constituent power to be found?  Everywhere in the new global constitutional landscape populated by the doctrine of unconstitutional constitutional amendment.    

As I have already noted, 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 condemned as 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 radically reorganize the constitution in the name of the awakened constituent power are seen as the destabilizer of the basic structure of the existing constitutional order.  Such pseudo-constituent power must be suppressed.  While the historical constituent power of the existing constitutional order 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, in the constitutional universe where the doctrine of unconstitutional constitutional amendment thrives, no identity-altering 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.  In this sense, the constituent power is more conservative than progressive inasmuch as the constitutional order switches to defensive mode.  Riding the global wave of the doctrine of unconstitutional constitutional amendment driven by judiciaries and comparative constitutional lawyers, constituent power has travelled across the globe, although it is more like a shadow figure.  In the background of the star doctrine of unconstitutional constitutional amendment appears constituent power’s second face.

‘The Place of the Constituent Power Is Empty’  

What does my brief tale of the constituent power’s two faces tell us?  Or rather, what does it tell us about the state of comparative studies of constitutional politics and jurisprudence?  The first face of the constituent power as a progressive idea continues to gain traction in socio-legal scholarship on constitutional ordering, whereas the constituent power’s second face is more conservative as revealed in global jurisprudence and comparative studies of unconstitutional constitutional amendments in constitutional democracies.  A juxtaposition of these two strands of constitutional scholarship suggests that the concept of constituent power is no longer confined to theory but rather has found expression in 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 a court’s full scrutiny.  In other words, a constitutional change in the guise of constitutional amendment can never lay legitimate claims to the exercise of constituent power in constitutional democracies.  It follows that the amendment procedures are off limits to the claims of the constituent power.  Put bluntly, the constituent power is forbidden to situate itself in the existing procedures and institutions.  On this view, the constituent power is no longer ‘[an] absolutely naked power unconditioned by the past’ as Rosanvallon notes.  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 been subject to much discussion.  For my present purposes, suffice it to note that juridification may serve the purpose of taming the fearful beast of the constituent power, which, without constraints, may result in unruly power grabs and destabilize constitutional democracy.  Yet, as a function of politics, the constituent power is, in essence, embedded in dynamic interactions of social forces  rather than a norm traceable to some ultimate source and thus it transcends any prescribed form by definition.  

The normative form the judiciaries of constitutional democracies have tried to give to constituent power as we see in instances where the doctrine of unconstitutional constitutional amendment is at play can only contain the charlatans that fail to carry the people with them when they dare to invoke the concept of constituent power in political struggles.  When the authentic exercise of constituent power comes about, however, even that normative form will certainly be pushed aside.  When push comes to shove, the judiciaries will have to decide whether it is time to follow ‘the peasants with pitchforks, and the toilers with Twitter’ and recognize the coming of a present active constituent power in place of its historical predecessor by accepting the attendant new constitutional order.  In this sense, the 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 the constituent power has arrived despite  the form of amendment.  Here arises an image of the constituent power mirroring that seen in the enterprise of constitution-making: the constituent power becomes something to be tamed rather than cheered.  Tamed, the popular concept of constituent power gives way to law-defined deliberating or constitution-drafting bodies of citizen participants.  Evoking what Claude Lefort said of democratic power, the place of constituent power is empty in the juridified world of constitution-making as it is something post-sovereign to be idealized but not to be experienced.

Dr Ming-Sung Kuo is a Reader in Law at University of Warwick where he teaches constitutional law and public international law. 

(Suggested citation: M-S. Kuo: The Constituent Power’s Two Faces’, U.K. Const. L. Blog (16th September 2024) (available at https://ukconstitutionallaw.org/))