COMPARATIVE CONSTITUTIONAL LAW
INTRODUCTION – COMPARATIVE CONSTITUTIONAL LAW: HISTORY AND CONTOURS
Interest in constitutional law has historically come in waves (after the Second World War, in the era of decolonization,
in the third wave of democratization…). How is it related to the study of comparative politics or what is its relation to
normative theories of liberal constitutionalism?
Current interest in comparative constitutional law is a legacy of the third wave in the late twentieth century. The field
is “self-sustaining” so it is not dependent upon triggering events. The field has undergone relatively rapid evolution:
new issues continue to arise and must be examined. The field of comparative law generally began to take shape in the
late nineteenth century, driven by processes of globalizing trade in a world of sovereign nations. Montesquieu’s idea
that “each nation’s laws reflected or embodied something distinctive about that nations spirit or culture” dominated
the thinking of legal scholars. This idea counselled against the possibility of a field of comparative law. As trade
globalized, however, the things started to change. The costs of international contracting pushed lawyers to develop
methods of harmonizing distinctive national laws. Harmonization could occur through the adoption of common
statutory regimes or through developing an understanding of the ways in which one nation’s laws actually closely
resembled those of another.
Constitutional law was understood to be a fundamental aspect of national sovereignty. The idea that one nation’s
constitutional law had much to do with another’s seemed incompatible with ideas of sovereignty.
The first two waves of comparative constitutional law both occurred when issues of sovereignty were taken off the
table. For example, in the era of decolonization, the colonial powers relinquished their sovereign control over their
former colonies.
To study constitutional law scientifically, scholars came to think, required the identification of functions common to all
constitutional systems such as the allocation of governing authority among the three branches of government that
Montesquieu had identified (legislative, executive and judicial) or the protector of fundamental human rights. The
Montesquiean perspective is that each nation’s choice or an electoral system reflects that nation’s understanding of
what electoral equality requires. The Montesquiean perspective may be particularly helpful in understanding the
structure of controversies, though less helpful in guiding towards the best normative solution.
Another discipline related to comparative constitutional law is public international law and international human
rights law. The connection between international law and domestic constitutional law is reasonably close. This is true
when international law is made part of domestic law by treaty and, where necessary, implementing legislation, with
the effect of overriding domestic constitutional law. Even when international law is not directly enforceable as such it
might be incorporated into domestic law. The UK’s Human Rights Act 1998 makes domestically applicable many of the
rights protected in the European Convention on Human Rights. The question of the relation between supranational
interpretations of international law and domestic constitutional law, where international law is not directly applicable,
illustrates some of the complexities of the relation between international law and domestic constitutional law.
Many works in comparative law devote substantial attention to questions of method. In any event is helpful to
identify some of the methodological issues in comparative constitutional law.
The first is language. Domestic constitutional law is conducted in each nation’s own language or languages. For this
reason, there are some issues in translation. Deeper issues of language and translation rise in the Benthamite tradition
of functionalism and universal grammar. The “natural” translation of some terms can be misleading.
Second, there are questions about the units of comparison. Recently, computerization has allowed the development
of large databases of national constitutions. Those databases have begun to generate “large-N” studies, with
accompanying statistical tests applied to identify the correlates and causes variation among constitutions.
A final method used in comparative constitutional law might be called illustrative or edifying. Comparative study can
help dissipate a sense citizens have that only constitutional provisions they are used to serve a nation’s goals. The
Montesquiean tradition suggests that there might be some degree of necessity to a nation’s laws. The national spirit
might express itself in several ways, albeit perhaps within a restricted range. Often this sort of comparative study is
explicitly normative, recommending changes in domestic constitutional law by reference to other nation’s
constitutions.
,All the field’s methods must confront the problem of time. Identifying the time frame within which scholars analyses
comparative matters will have important consequences. One response to the problem of time might be emphasize
the edifying and illustrative methods of comparative constitutional law.
Finally, it is essential to note that every approach to comparative constitutional law carries with it some normative or
ideological baggage. The norms or ideologies associated with the fields are cosmopolitanism and liberal
constitutionalism, countered only modestly by a positivism that sometimes works as a critique of the norms taken for
granted by liberal assumptions associated with cosmopolitanism. A great deal of interest in the field turns less on a
constitution’s language or the wording of judicial opinions than on the nation’s party structure. Some aspects of the
party system are loosely coupled with constitutional structure. The field of comparative constitutional law to be
blended with the study of comparative politics into a field to be called “constitutional studies”.
CONSTITUTION – MAKING
The precise issues that constitution-makers confront vary widely and depend on the specific historical circumstances
under which they operate. Generalizations are difficult, yet we can identify some issues about constitutional design
that arise repeatedly.
WHY MAKE A CONSTITUTION?
Consider a “new” nation, one that has successfully struggled to secede from another, or one that emerges from deep
intra-national conflict. Such a nation might “need” a constitution for several reasons. The primary one is that in the
modern world a constitution is probably regarded by the international community. Second, domestic actors may treat
the existence of a constitution as establishing or symbolizing the nation’s existence as a state. Third, constitutions are
convenient ways of laying out the formal contours of the mechanisms for exercising public power. In some nations a
constitution can serve as an expression of national unity.
Constitution making can occur in nations with established constitutions as well. Here we distinguish between
amendments, which are routine, and the replacement of a constitution in force. Replacements can occur when the
existing constitution has become outdated to the point where amending it would take a great deal of effort. Or
replacements can occur when those holding power under the existing constitution have become substantially
discredited for reasons associated to the constitution in place. These replacements might be described as involving
constitution making in crisis conditions.
Another form of constitution-making can be called “abusive”. The idea is simple: sometimes political leaders use the
legal form of constitution-making to enact constitutional amendments with provisions that are inconsistent with
constitutionalism understood in roughly liberal terms. When the constitutional order is widely thought to have failed
changing the constitution will almost inevitably produce serious irregularities in law making and so might easily be
described as “abusive”. Attempting to give more precise analytic content to the idea of abusive constitutionalism
reveals some of the idea’s complexities:
1. It is useful to distinguish between abusive constitutionalism and the replacement of constitutionalism by
authoritarianism. The reason is that the matter of concern here is not the abuse of the existing constitution,
but the authoritarian outcome.
2. Recent scholarship has introduced an idea related to that of abusive constitutionalism with the label
“backsliding”. The idea is that every constitution achieves some level of satisfaction of its motivating values
and that constitutional change can reduce that level.
Considering only democracies abusive constitutionalism and backsliding might be helpful as long as the
transformations they identify keep the regime within the broad class of democracies. Let’s analyse two cases: one
described as abusive and one that is not, but should be.
HUNGARY Taking advantage of an aspect of Hungary’s electoral rules the Fidezs Party led by Viktor Orban converted a
narrow electoral victory to a legislative majority able to amend the constitution at will. Through a series of
constitutional amendments, the governing party was able to gain control over all organs of government, including
those that might have served to check its power and to deprive opposition parties and civil society of significant
resources that might have allowed them to mount serious political resistance to the system’s transformation. Orban
rejected liberalism itself. In addition, he contended accurately that one of the contested provisions could be found in
,the constitutions of one or another liberal democracy. He emphasized that the new constitution better reflected the
historical traditions of the Hungarian people.
THE UNITED STATES The republican party used its control over state legislatures to enact “voter identification” laws
that aimed at ensuring that only registered voters actually cast their votes. The party also supported
“gerrymandering” efforts whose effect was to make it easier for republican candidates to win enough seats to control
legislative chambers even when more voters actually voted for democratic candidates. It supported systems of
financing political campaigns whose effect was to give republican candidates financial advantages over democratic
ones. All these efforts were held to be constitutionally permissible by a Supreme Court with a majority of justices
nominated by republican presidents. These characterizations are controversial, yet at least in the existing literature
they are not described as abusive constitutionalism. This suggests that the terms have an implicit normative
commitment, not to some normative vision of constitutionalism, but to constitutional arrangements that do not
depart too far from what occurs in “core” democracies. Then the ethnocentricity of the field of comparative
constitutional law has not been eliminated.
In order to guard against abusive constitutionalism one possibility is to create separate amendment rules for different
part of the constitution. Three related features of abusive constitutionalism are particularly worth emphasizing. First,
the abuses occur by using existing legal mechanisms for changing the constitution; they are lawful as a matter of
positive domestic constitutional law. Second, what makes them abusive rather than ordinary is primarily that they
make it more difficult for the government’s opponents to replace the government through ordinary political means.
Third, the changes place out of constitutional bounds substantive policies opponents might seek to advance, thereby
making it seemingly pointless for voters to choose the opposition anyway. Many constitutional provisions have
substantive content. Typically, ordinary legislation cannot override such provisions. The provisions are abusive, if they
are, because they entrench especially controversial policies.
Assuming that abusive constitutionalism leaves some space for political oppositions the substantive content of
abusive provisions will place great pressure on the new government to engage in what might be called counter-
abusive constitutionalism. Hungary is a good example. The Orban government’s constitutional amendments included
a strong budget provision, coupled with a rule that budgets must be approved by a board dominate by Fidesz
appointees. That rule is backed up by one authorizing the board to enact a budget if the parliament fails to do so
within a relatively short period – and by a constitutional court that, again when the opposition takes control, would be
staffed by Fidesz appointees. The opposition could enact its budget only by ignoring the substantive constitutional
provisions, yet, if the original provisions are examples of abusive constitutionalism, responding to them by targeted
departures from legality may be entirely appropriate.
The analytical utility of abusive constitutionalism may be questioned. It is helpful to distinguish between liberal
constitutionalism and constitutional law because every nation has a constitution but not every nation is a liberal
democracy. The category of abusive constitutionalism will have to distinguish between constitutions that contain
some provisions that are inconsistent with some accounts of aspects of liberal constitutionalism and constitutions
that depart so substantially from liberal constitutionalism as to be abusive. This is difficult when the constitution at
issue is programmatic, that is, it sets out general policies the accomplishment of which is said to be constitutionally
required.
THE FOUNDATION OF CONSTITUTION-MAKING: THE CONSTITUENT POWER
In recent years the idea that constitutions ultimately rest on a “constituent power” has returned to prominence in
theorizing about constitutional fundamentals. The constituent power is the body of the people from whom the
constitution’s authority emanates. The constituent power combines something like a reference to real people whose
consent is the basis of a constitution’s legal legitimacy, with the thought that a constitution’s authority can derive
from a collectively project that no one fully holds and a conceptual point about the need for something to serve as a
basis or the constitution’s authority.
One way of identifying the core difficulty is: the constituent power sometimes is called into being the very process of
constitution-making that presupposes the existence of the constituent power. This is expressed in the proposition
that constitution-making presupposes people for whom the constitution is to be a constitution. The US may be an
example of a nation that was created by the very act of constitution-making. Sometimes constitution-making involves
, nation-building, the creation of a single nation unifying previously diverse entities. Constitutions created for the
purpose of unifying a nation might be understood as vehicles for the creation of a demos (people).
Normative and practical difficulties arise when there is a pre-existing demos that can exercise the constituent power.
Consider first post-conflict constitution-making. The question of who constitutes the nation is likely to be at issue in
the constitution-making process. An example might be the creation and subsequent separation of India and Pakistan.
Further, the constitution-making body cannot actually be the people as a whole. For purely practical reasons that
body can be at most representative of the people. Its members may claim to speak in the aggregate for the people,
but shortfalls are inevitable where the constitution-making body is composed of political groupings or “parties”. Some
groupings may be left out of the constitution-making process for seemingly practical reasons. Yet these small
groupings might be socially or normatively significant, as with indigenous people in many nations.
It is misleading to think that the constituent power is an actual aggregate entity in the real world. It should be
understood as a concept that helps explain the normative basis for a constitution’s claim to authority. The claim
should be understood not as implicating something akin to sociological legitimacy but rather in purely conceptual
terms. The practical payoff might be small though using the idea of the constituent power does sometimes support
clearer thinking about some practical problems. A nation with a constituent power must get the constitution-making
process started somehow. Today, some constitution-making processes are assisted by elements of the international
community, either international organizations, such as the UN or individual nations.
The constitution in place may provide mechanisms for its own replacement. But, to the extent that the constitution-
makers are representatives of the constituent power, they may believe that they are not legally constrained by
existing mechanisms. The constitutional transformations in the US and France in the late eighteenth century were
revolutionary displacements of the prior regimes. The revolutions were themselves outside the existing forms of
legality. The revolutions demonstrated that constitutional theory had to accommodate itself to the fact that force and
violence sometimes displaced law as a means of ordering society. The proposition that the constituent power is
legally unconstrained is that accommodation.
Constitutions in place typically provide mechanisms for their amendment and sometimes for their replacement. The
idea that constitutionally prescribed procedures for amending or replacing the constitution need not be followed
retains some force, and necessarily so if constitutional theory addresses the role of revolution in constitutional
transformation. Theorists of the constituent power built a conceptual apparatus that allowed them to defer the
question of whether amendments and replacements could depart from legality. Amending or replacing constitutions
through legally authorized methods allows for constitutional change without incurring in costs, even if constitutional
amendments and replacements might occur outside the forms of law.
The constituent power itself prescribes the procedures for amending or replacing the constitution. Those who
employ such procedures are acting in line with the constituent power’s prescriptions. After the constituent power
creates a constitution, every action taken within that constitutional framework is an exercise of constituted power.
The theory of the constituent power “kicks in” only when the existing procedures are ignored. The constituent power
retains the power to re-constitute the constitution on its own terms, that is, on terms set at any time by the
constituent power as it is.
Consider a putative constitutional amendment adopted without complying with the existing procedures. A
constitution might say that constitutional amendments are adopted by specified legislative majorities and make no
room for amendments adopted by popular referenda. Suppose a political party campaigns on a platform promising a
referendum to amend the constitution. It wins the election and holds the referendum. The government, though, lacks
the constitutionally specified majority for a legislative amendment.
How do we know when the constituent power has been exercised? One line of thought in accounts of the constituent
power takes the answer to the question to lie in success or failure. That the constituent power has been exercised is
confirmed if a constitutional amendment or replacement adopted after departing from the prescribed procedures
takes hold and actually regulates the exercise of power, otherwise not. In a second version, constitution-making
processes get started without there being a pre-existing framework for constitutional revision which can be described
as constitution-making in a vacuum. Twentieth century experiences of decolonization are good examples: colonizing
powers withdrew facilitating the constitution-making process but not acting as participants in that process. The
ancient regime has collapsed and its supporters have fled, leaving the field open for a complete constitutional
INTRODUCTION – COMPARATIVE CONSTITUTIONAL LAW: HISTORY AND CONTOURS
Interest in constitutional law has historically come in waves (after the Second World War, in the era of decolonization,
in the third wave of democratization…). How is it related to the study of comparative politics or what is its relation to
normative theories of liberal constitutionalism?
Current interest in comparative constitutional law is a legacy of the third wave in the late twentieth century. The field
is “self-sustaining” so it is not dependent upon triggering events. The field has undergone relatively rapid evolution:
new issues continue to arise and must be examined. The field of comparative law generally began to take shape in the
late nineteenth century, driven by processes of globalizing trade in a world of sovereign nations. Montesquieu’s idea
that “each nation’s laws reflected or embodied something distinctive about that nations spirit or culture” dominated
the thinking of legal scholars. This idea counselled against the possibility of a field of comparative law. As trade
globalized, however, the things started to change. The costs of international contracting pushed lawyers to develop
methods of harmonizing distinctive national laws. Harmonization could occur through the adoption of common
statutory regimes or through developing an understanding of the ways in which one nation’s laws actually closely
resembled those of another.
Constitutional law was understood to be a fundamental aspect of national sovereignty. The idea that one nation’s
constitutional law had much to do with another’s seemed incompatible with ideas of sovereignty.
The first two waves of comparative constitutional law both occurred when issues of sovereignty were taken off the
table. For example, in the era of decolonization, the colonial powers relinquished their sovereign control over their
former colonies.
To study constitutional law scientifically, scholars came to think, required the identification of functions common to all
constitutional systems such as the allocation of governing authority among the three branches of government that
Montesquieu had identified (legislative, executive and judicial) or the protector of fundamental human rights. The
Montesquiean perspective is that each nation’s choice or an electoral system reflects that nation’s understanding of
what electoral equality requires. The Montesquiean perspective may be particularly helpful in understanding the
structure of controversies, though less helpful in guiding towards the best normative solution.
Another discipline related to comparative constitutional law is public international law and international human
rights law. The connection between international law and domestic constitutional law is reasonably close. This is true
when international law is made part of domestic law by treaty and, where necessary, implementing legislation, with
the effect of overriding domestic constitutional law. Even when international law is not directly enforceable as such it
might be incorporated into domestic law. The UK’s Human Rights Act 1998 makes domestically applicable many of the
rights protected in the European Convention on Human Rights. The question of the relation between supranational
interpretations of international law and domestic constitutional law, where international law is not directly applicable,
illustrates some of the complexities of the relation between international law and domestic constitutional law.
Many works in comparative law devote substantial attention to questions of method. In any event is helpful to
identify some of the methodological issues in comparative constitutional law.
The first is language. Domestic constitutional law is conducted in each nation’s own language or languages. For this
reason, there are some issues in translation. Deeper issues of language and translation rise in the Benthamite tradition
of functionalism and universal grammar. The “natural” translation of some terms can be misleading.
Second, there are questions about the units of comparison. Recently, computerization has allowed the development
of large databases of national constitutions. Those databases have begun to generate “large-N” studies, with
accompanying statistical tests applied to identify the correlates and causes variation among constitutions.
A final method used in comparative constitutional law might be called illustrative or edifying. Comparative study can
help dissipate a sense citizens have that only constitutional provisions they are used to serve a nation’s goals. The
Montesquiean tradition suggests that there might be some degree of necessity to a nation’s laws. The national spirit
might express itself in several ways, albeit perhaps within a restricted range. Often this sort of comparative study is
explicitly normative, recommending changes in domestic constitutional law by reference to other nation’s
constitutions.
,All the field’s methods must confront the problem of time. Identifying the time frame within which scholars analyses
comparative matters will have important consequences. One response to the problem of time might be emphasize
the edifying and illustrative methods of comparative constitutional law.
Finally, it is essential to note that every approach to comparative constitutional law carries with it some normative or
ideological baggage. The norms or ideologies associated with the fields are cosmopolitanism and liberal
constitutionalism, countered only modestly by a positivism that sometimes works as a critique of the norms taken for
granted by liberal assumptions associated with cosmopolitanism. A great deal of interest in the field turns less on a
constitution’s language or the wording of judicial opinions than on the nation’s party structure. Some aspects of the
party system are loosely coupled with constitutional structure. The field of comparative constitutional law to be
blended with the study of comparative politics into a field to be called “constitutional studies”.
CONSTITUTION – MAKING
The precise issues that constitution-makers confront vary widely and depend on the specific historical circumstances
under which they operate. Generalizations are difficult, yet we can identify some issues about constitutional design
that arise repeatedly.
WHY MAKE A CONSTITUTION?
Consider a “new” nation, one that has successfully struggled to secede from another, or one that emerges from deep
intra-national conflict. Such a nation might “need” a constitution for several reasons. The primary one is that in the
modern world a constitution is probably regarded by the international community. Second, domestic actors may treat
the existence of a constitution as establishing or symbolizing the nation’s existence as a state. Third, constitutions are
convenient ways of laying out the formal contours of the mechanisms for exercising public power. In some nations a
constitution can serve as an expression of national unity.
Constitution making can occur in nations with established constitutions as well. Here we distinguish between
amendments, which are routine, and the replacement of a constitution in force. Replacements can occur when the
existing constitution has become outdated to the point where amending it would take a great deal of effort. Or
replacements can occur when those holding power under the existing constitution have become substantially
discredited for reasons associated to the constitution in place. These replacements might be described as involving
constitution making in crisis conditions.
Another form of constitution-making can be called “abusive”. The idea is simple: sometimes political leaders use the
legal form of constitution-making to enact constitutional amendments with provisions that are inconsistent with
constitutionalism understood in roughly liberal terms. When the constitutional order is widely thought to have failed
changing the constitution will almost inevitably produce serious irregularities in law making and so might easily be
described as “abusive”. Attempting to give more precise analytic content to the idea of abusive constitutionalism
reveals some of the idea’s complexities:
1. It is useful to distinguish between abusive constitutionalism and the replacement of constitutionalism by
authoritarianism. The reason is that the matter of concern here is not the abuse of the existing constitution,
but the authoritarian outcome.
2. Recent scholarship has introduced an idea related to that of abusive constitutionalism with the label
“backsliding”. The idea is that every constitution achieves some level of satisfaction of its motivating values
and that constitutional change can reduce that level.
Considering only democracies abusive constitutionalism and backsliding might be helpful as long as the
transformations they identify keep the regime within the broad class of democracies. Let’s analyse two cases: one
described as abusive and one that is not, but should be.
HUNGARY Taking advantage of an aspect of Hungary’s electoral rules the Fidezs Party led by Viktor Orban converted a
narrow electoral victory to a legislative majority able to amend the constitution at will. Through a series of
constitutional amendments, the governing party was able to gain control over all organs of government, including
those that might have served to check its power and to deprive opposition parties and civil society of significant
resources that might have allowed them to mount serious political resistance to the system’s transformation. Orban
rejected liberalism itself. In addition, he contended accurately that one of the contested provisions could be found in
,the constitutions of one or another liberal democracy. He emphasized that the new constitution better reflected the
historical traditions of the Hungarian people.
THE UNITED STATES The republican party used its control over state legislatures to enact “voter identification” laws
that aimed at ensuring that only registered voters actually cast their votes. The party also supported
“gerrymandering” efforts whose effect was to make it easier for republican candidates to win enough seats to control
legislative chambers even when more voters actually voted for democratic candidates. It supported systems of
financing political campaigns whose effect was to give republican candidates financial advantages over democratic
ones. All these efforts were held to be constitutionally permissible by a Supreme Court with a majority of justices
nominated by republican presidents. These characterizations are controversial, yet at least in the existing literature
they are not described as abusive constitutionalism. This suggests that the terms have an implicit normative
commitment, not to some normative vision of constitutionalism, but to constitutional arrangements that do not
depart too far from what occurs in “core” democracies. Then the ethnocentricity of the field of comparative
constitutional law has not been eliminated.
In order to guard against abusive constitutionalism one possibility is to create separate amendment rules for different
part of the constitution. Three related features of abusive constitutionalism are particularly worth emphasizing. First,
the abuses occur by using existing legal mechanisms for changing the constitution; they are lawful as a matter of
positive domestic constitutional law. Second, what makes them abusive rather than ordinary is primarily that they
make it more difficult for the government’s opponents to replace the government through ordinary political means.
Third, the changes place out of constitutional bounds substantive policies opponents might seek to advance, thereby
making it seemingly pointless for voters to choose the opposition anyway. Many constitutional provisions have
substantive content. Typically, ordinary legislation cannot override such provisions. The provisions are abusive, if they
are, because they entrench especially controversial policies.
Assuming that abusive constitutionalism leaves some space for political oppositions the substantive content of
abusive provisions will place great pressure on the new government to engage in what might be called counter-
abusive constitutionalism. Hungary is a good example. The Orban government’s constitutional amendments included
a strong budget provision, coupled with a rule that budgets must be approved by a board dominate by Fidesz
appointees. That rule is backed up by one authorizing the board to enact a budget if the parliament fails to do so
within a relatively short period – and by a constitutional court that, again when the opposition takes control, would be
staffed by Fidesz appointees. The opposition could enact its budget only by ignoring the substantive constitutional
provisions, yet, if the original provisions are examples of abusive constitutionalism, responding to them by targeted
departures from legality may be entirely appropriate.
The analytical utility of abusive constitutionalism may be questioned. It is helpful to distinguish between liberal
constitutionalism and constitutional law because every nation has a constitution but not every nation is a liberal
democracy. The category of abusive constitutionalism will have to distinguish between constitutions that contain
some provisions that are inconsistent with some accounts of aspects of liberal constitutionalism and constitutions
that depart so substantially from liberal constitutionalism as to be abusive. This is difficult when the constitution at
issue is programmatic, that is, it sets out general policies the accomplishment of which is said to be constitutionally
required.
THE FOUNDATION OF CONSTITUTION-MAKING: THE CONSTITUENT POWER
In recent years the idea that constitutions ultimately rest on a “constituent power” has returned to prominence in
theorizing about constitutional fundamentals. The constituent power is the body of the people from whom the
constitution’s authority emanates. The constituent power combines something like a reference to real people whose
consent is the basis of a constitution’s legal legitimacy, with the thought that a constitution’s authority can derive
from a collectively project that no one fully holds and a conceptual point about the need for something to serve as a
basis or the constitution’s authority.
One way of identifying the core difficulty is: the constituent power sometimes is called into being the very process of
constitution-making that presupposes the existence of the constituent power. This is expressed in the proposition
that constitution-making presupposes people for whom the constitution is to be a constitution. The US may be an
example of a nation that was created by the very act of constitution-making. Sometimes constitution-making involves
, nation-building, the creation of a single nation unifying previously diverse entities. Constitutions created for the
purpose of unifying a nation might be understood as vehicles for the creation of a demos (people).
Normative and practical difficulties arise when there is a pre-existing demos that can exercise the constituent power.
Consider first post-conflict constitution-making. The question of who constitutes the nation is likely to be at issue in
the constitution-making process. An example might be the creation and subsequent separation of India and Pakistan.
Further, the constitution-making body cannot actually be the people as a whole. For purely practical reasons that
body can be at most representative of the people. Its members may claim to speak in the aggregate for the people,
but shortfalls are inevitable where the constitution-making body is composed of political groupings or “parties”. Some
groupings may be left out of the constitution-making process for seemingly practical reasons. Yet these small
groupings might be socially or normatively significant, as with indigenous people in many nations.
It is misleading to think that the constituent power is an actual aggregate entity in the real world. It should be
understood as a concept that helps explain the normative basis for a constitution’s claim to authority. The claim
should be understood not as implicating something akin to sociological legitimacy but rather in purely conceptual
terms. The practical payoff might be small though using the idea of the constituent power does sometimes support
clearer thinking about some practical problems. A nation with a constituent power must get the constitution-making
process started somehow. Today, some constitution-making processes are assisted by elements of the international
community, either international organizations, such as the UN or individual nations.
The constitution in place may provide mechanisms for its own replacement. But, to the extent that the constitution-
makers are representatives of the constituent power, they may believe that they are not legally constrained by
existing mechanisms. The constitutional transformations in the US and France in the late eighteenth century were
revolutionary displacements of the prior regimes. The revolutions were themselves outside the existing forms of
legality. The revolutions demonstrated that constitutional theory had to accommodate itself to the fact that force and
violence sometimes displaced law as a means of ordering society. The proposition that the constituent power is
legally unconstrained is that accommodation.
Constitutions in place typically provide mechanisms for their amendment and sometimes for their replacement. The
idea that constitutionally prescribed procedures for amending or replacing the constitution need not be followed
retains some force, and necessarily so if constitutional theory addresses the role of revolution in constitutional
transformation. Theorists of the constituent power built a conceptual apparatus that allowed them to defer the
question of whether amendments and replacements could depart from legality. Amending or replacing constitutions
through legally authorized methods allows for constitutional change without incurring in costs, even if constitutional
amendments and replacements might occur outside the forms of law.
The constituent power itself prescribes the procedures for amending or replacing the constitution. Those who
employ such procedures are acting in line with the constituent power’s prescriptions. After the constituent power
creates a constitution, every action taken within that constitutional framework is an exercise of constituted power.
The theory of the constituent power “kicks in” only when the existing procedures are ignored. The constituent power
retains the power to re-constitute the constitution on its own terms, that is, on terms set at any time by the
constituent power as it is.
Consider a putative constitutional amendment adopted without complying with the existing procedures. A
constitution might say that constitutional amendments are adopted by specified legislative majorities and make no
room for amendments adopted by popular referenda. Suppose a political party campaigns on a platform promising a
referendum to amend the constitution. It wins the election and holds the referendum. The government, though, lacks
the constitutionally specified majority for a legislative amendment.
How do we know when the constituent power has been exercised? One line of thought in accounts of the constituent
power takes the answer to the question to lie in success or failure. That the constituent power has been exercised is
confirmed if a constitutional amendment or replacement adopted after departing from the prescribed procedures
takes hold and actually regulates the exercise of power, otherwise not. In a second version, constitution-making
processes get started without there being a pre-existing framework for constitutional revision which can be described
as constitution-making in a vacuum. Twentieth century experiences of decolonization are good examples: colonizing
powers withdrew facilitating the constitution-making process but not acting as participants in that process. The
ancient regime has collapsed and its supporters have fled, leaving the field open for a complete constitutional
