The Limitless Nature of the Constituent Power and its Relation to Constitutionalism

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Much has been written about the limitless nature of the exercise of the constituent power. This means that constitutional framers, supposing they are duly authorized by the sovereign to exercise this power to its fullest potential, are not bound by any legal constraint with regard to how they can exercise the constituent power. In other words, when it comes to the constituent power, all options are on the table. Will the new constitutional order allow free speech or not? Will it have three branches of government or six? Will it prohibit torture or require it?

The limitless nature of the constituent power, and the fact that there are no legal constraints that can be imposed on it, create an understandable concern for constitutional jurists. How can something that is meant to produce an instrument that, in turn, is supposed to control and limit power not be, itself, subject to any control or limit? This has led many constitutional jurists to attempt to identify internal limits to that power. Such endeavors, like concluding that a constitution can be unconstitutional, are and should be, futile.

But the exercise of the constituent power does not operate in a vacuum. There are external factors that—while they cannot limit the constituent power properly—can exert sufficient pressure so as to become a de facto limitation. One of those factors is constitutionalism. In other words, while a constitution can never be unconstitutional, it can be un-constitutionalist. This article explores that possibility, specifically, that while principles associated with constitutionalism cannot actually limit the exercise of the constituent power, they can be used to raise moral objections with regards to a particular exercise of that power, and deny the constitutionalist label to its product.

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Connecticut Journal of International Law

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