ABSTRACT
Constituent power should be understood as the ‘missing link’ in the debate about constitutionalism and democracy. After all, that debate is, in the last instance, about the ways in which constitutionalism appears to negate democracy at the level of the fundamental laws; about the ways it might hinder the people’s faculty of making and remaking constitutions. It is true that constitutionalism can be made consistent with the idea that the authority of a constitution is derived from the sovereign people, and that the demos has (at least theoretically) the right to have any constitution it wants. The problem, as we saw in Chapter 2 , is that after a constitution is in place, constitutionalism’s main function (that of limiting political power) runs counter to the idea of creating opportunities for ordinary citizens to make episodical appearances and engage in important constitutional transformations. In other words, as a matter of actual political practice, the people’s ultimate political power is also seen as the object of constitutionalism’s limiting role. 1 What constituent power does is point to some instances in which a departure from constitutionalism is warranted; episodes in which the citizenry exercises its democratic right to (re)create the constitutional regime under which it lives.
