The Boundaries of Constituent Authority

This Article delves into the question of the boundaries of constitution-making power. Traditionally, constituent power is regarded as an original, inherent and unlimited power. That is why constitution-making moments are described in the literature as a kind of ‘wild-west.’ Constituent power is unbound by prior constitutional rules. But does this mean that it is unlimited in the sense that it can disregard any basic principles, or should we endorse Benjamin Constant’s declaration that “sovereignty of the people is not unlimited”? This Article provides a preliminary sketch of possible limits of constituent power. First, according to some approaches to constitution-making powers, there must be certain limitations even on constituent power derived from natural law. In fact, Sieyès himself remarked that ‘prior to and above the nation, there is only natural law,’ which implies that Sieyès viewed constituent power as limited by certain principles. Moreover, nowadays, international and supra-national law may impose various limitations on the constitution-making power. Furthermore, if the goal of constitution-making is not to produce a written constitution, but to promote constitutionalism, then a plausible argument is that constitutionalism and constitutions are inseparably linked so that an exercise of constituent power cannot undermine constitutionalism but must be linked to certain common principles of law. Finally, the very concept of constituent power may carry certain inherent limitations, since in order to be consistent with the idea of ‘the people giving itself a constitution,’ it must observe certain fundamental rights that are necessary for constituent power to preserve itself and reappear in the future. This Article evaluates the various routes of restrictions on constituent power.