ABSTRACT
Constituent power, it has been suggested in previous chapters, has an important 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 unmaking 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, constitutionalists’ 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.
