What are the elements uniting (or distinguishing) entities that in different jurisdictions and historical periods, have been officially called General Congresses, Constituent Parliaments, Constituent Congresses, National Constituent Assemblies, Constitutional Assemblies, Assemblies of Revision, Parallel Constituent Assembles, or Conventions, but at the same time are generically labelled by political actors and academics as ‘constituent assemblies’? In attempting to answer that question, the objective of this chapter is threefold. First, to describe the main features of the type of institution that can be accurately identified as a constituent assembly. This requires a conception that is broad enough to cover most constitution-making bodies that would be normally labelled as ‘constituent assemblies’, but specific enough as to discriminate against entities that lack certain features. I propose that, while constituent assemblies may be understood in terms of their form or function, it is the nature of their power what distinguishes them from other constitution-drafting mechanisms. My second objective is to enquire into the limits of the power of -a properly understood- constituent assembly. Third, and relatedly, to consider the effects that the attempt to constitutionally regulate such an entity has on its ‘constituent’ nature.

This chapter argues that an adequate assessment of revolutions (and the role of law in revolutions) is often stymied by historical exclusions and theoretical myopia. Historical exclusions centralise certain experiences and present sanitized and one-sided narratives of the revolutionary experiences they centralise, especially with respect to violence, slavery, and colonialism. On the basis of such ideological uses of history, theoretical accounts paper over these social and political realities in order to legitimate particular revolutionary constitutions and to elevate them to the status of a paradigm or ideal type. This paradigm serves as the yardstick by which other experiences are assessed. The main feature of this paradigm is that it postulates a distinction between political and social revolutions. It presents the American Revolution of 1776 as an exemplar for the political revolution that concerns itself with the establishment of government under law. In contrast, the French Revolution of 1789 is presented as an exemplar for the social revolution that also seeks to tackle social injustice. The deficiency of this paradigm construction is not merely methodological, but also substantive and normative. It reduces the plurality of the revolutionary phenomena, it ignores the revolution’s dialectical nature, and it presents a certain type of revolutionary constitutions as ones that legitimate the polity.

The concept of constituent power emerges alongside that of the modern documentary constitution. It expresses the conviction that the authority of the constitution rests on its having been drafted in the name of ‘the people’ who, through an exercise of their constitution-making power, are the authors of that constitution. Conceiving the constitution as an expression of collective self-government, constituent power is therefore closely associated with the concept of popular sovereignty. This chapter examines how constituent power emerged in modern thought, explains its original meaning, sketches its subsequent evolution in thought, and evaluates the role it continues to play in contemporary constitutional discourse.

Federalism is a distinctive form of constitutional rule but one that has largely been neglected by both political and constitutional theory. Existing accounts of federalism tend to focus almost exclusively upon its institutional manifestation. What is lacking is an account of the common conceptual underpinnings that unite these various institutional forms within the genus of one constitutional idea. In this chapter Stephen Tierney argues that the core idea of federalism can only be arrived at by way of constitutional theory. Constitutional theory explains both how and why law is used to manage political power. Federal constitutions manage and transform political power for a discrete purpose that is fundamentally distinguishable from other constitutional forms. This chapter contends that federalism must be addressed as a specific genus of constitutional government for the modern state which, in the act of constitutional union, gives foundational recognition and accommodation to the state’s constituent territorial pluralism. The purpose of the federal constitution is to maintain the foundational relationship between pluralism and union through the creation and reconciliation of different orders of government. This marks a significant fork in the road between federal and unitary constitutionalism, not just in institutional terms but at the most fundamental level of constitutional identity and legitimacy.

The “All Affected Interests Principle” (AAIP) and the related “All Subjected Principle” (ASP) articulate principles of political legitimacy that can serve as potent instruments for evaluating the legitimacy of non-state institutional orders. However, while both are useful for evaluating the legitimacy of already-existing institutional orders, many of most important democratic legitimacy failures of our age arise not only from the undemocratic character of already-constituted orders but also from the fact that in many key domains we lack any institutionalized capacity to address the urgent collective action problems we face. How can such institutions be established in a democratically legitimate way, as an exercise of democratic collective agency? The chapter takes a historicizing turn, arguing that AAIP and ASP creatively retrieve and reconstruct old ideas in the history of democratic thought, liberating them from the presupposition that they can only be actualized within the territorial boundaries of the state. It then argues that we can reconstruct the concept of constituent power as a form of democratic agency to show how democratically legitimate sites of binding collective decision beyond the state can come into being.

Gary Jacobsohn’s theory of constitutional identity speaks to normative questions about the exercise of constituent power in constitution making. To gain purchase on these questions, this article applies Rousseau’s description of three "moments" of citizenship to the creation and maintenance of constitutional orders. Jacobsohn’s understanding of constitutional identity as something that emerges over time as opposed to an episodic expression enriches the Rousseauian model’s response to the paradoxes of democracy. Ultimately, Jacobsohn’s model implies that true constituent power is exercised only in the form of a dialogue within a shared understanding of democratic legitimacy, raising the possibility that moments of violent disruptive constitutional change cannot be accommodated to the requirements of democratic legitimacy at all – a return to Rousseau’s paradox of founding.

The constitution in the material sense is not particularly popular among lawyers. As its conceptual predecessor (the doctrine of the historical constitution), the constitution in the material sense points toward a series of non-specified norms relating to the basic structure of government and to the relationship between citizens and the state. As such, it lacks the certainty often associated with legal rules. In this chapter, we will focus on two judgements of Latin American constitutional courts where, by relying on a specific conception of the material constitution, judges sought both to define the competence of the amending authority and to challenge the judicial imposition of implicit limits to the power of constitutional reform.

In this chapter, Sanford Levinson examines the practice and implication of appending amendments to the end of the Constitution and inquires how many times the Constitution has amended. The presumptively correct answer number of amendments, at present, is twenty-seven, but those are only textual amendments to the Constitution. “How many times has the United States Constitution been amended” generates what Wittgenstein well described as “mental cramps.” His own belief was that one could cure these cramps by dissolving many traditional questions of philosophy. We could do the same if we adopted a truly minimalist understanding of “constitutionalism” that allowed, for example, anyone designated as the Ruler to rule by absolute discretion. One might proffer this as a variant of Hobbesian constitutionalism, whereby the sovereign people, realizing that nothing else can in fact guarantee them the security they yearn for, delegate their powers to an all-powerful Leviathan. An alternative is what has come to be identified as “liberal constitutionalism,” with the attached meaning of governments that are established through institutions created (and limited) by the constitution itself.

Illiberal democracy is a special constitutional arrangement: it is a plebiscitarian democracy unfolding the totalitarian potential within a democratic system. As a centralized power, it intends to perpetuate the rulers’ monopoly over the state, relying on the falsification of classical (liberal) constitutionalism. These features offer sufficient family resemblance to treat them together for the purposes of constitutional theory. Illiberal democracy takes an instrumental attitude to constitutional institutions. Amendments to the constitution take place according to the momentary interests of the political power, like in any democracy without extremely cumbersome amendment rules. The ultimate attachment to the spirit of the constitution, the idea of respecting an unamendable core, is missing. There is no commitment to underlying principles; appearances matter, not authenticity. Hence the inevitable duplicity and deceit in the constitutional and legal system of illiberal democracy. The constitution is not an entrenched, higher order law but a practical tool to solve emerging conflicts in an illiberal and nondemocratic way (imposing arbitrary will as supreme command).

Recent constitution-making episodes in countries such as Venezuela, Bolivia, Hungary, and Iceland have highlighted the important, varied roles that courts might play during constitution-making processes undertaken from a democratic starting point. This chapter develops a typology of the functions that courts have played during these processes. In some cases, courts have played a catalytic function, spurring constitution making that otherwise might not have occurred; in others, they have played a blocking function, stopping constitution making from taking place; and in a third set of cases, they have played a shaping function, neither catalyzing nor preventing constitution making, but instead impacting the nature of the process. These functions, in turn, tend to be tied to different theories of constitution making. What emerges from this survey is that there is no single best mode of judicial intervention during constitution making; the optimal response is contextual. A key descriptive goal is to understand how political context affects the ways in which courts act; a key normative goal is to improve the fit between the nature of judicial action and the needs of a given context.

Does the absence of a legal rupture, the failure to put into practice the idea of a legally unrestrained popular sovereign, necessarily mean that an exercise of constituent power has not taken place? Can constituent power be exercised through law? These are questions that indirectly challenge one of the features normally attributed to constituent power: its unmediated and uncontrollable nature. This chapter will compare two traditions of constitutional thought (that of Sieyès and Rousseau) that provided different answers to those questions and explore the ways in which the idea that constituent power can be exercised through legally recognised procedures has figured in later constitutional theory and practice.

Hannah Arendt disapproved of all conceptualisations of popular power in terms of sovereignty. This abolished human plurality by prioritising the need to represent the people as a unitary body having a unitary will. By contrast, politics for Arendt had to be structured around a radically different conceptualisation of popular power, and constituent power served precisely that purpose. Arendt thus aimed to rescue the democratic principle of popular authority by presenting constituent power as a radical alternative to the notion of sovereignty. The former was not a conceptualisation of popular power but its practical instantiation. It did not find its origins in the canon of Western philosophy but in the historical practice of people promising and acting together in the public space. By showcasing the plurality inherent to politics, constituent power testified that popular power does not have to disappear once the political order is created, but must be continuously exercised through the state’s institutional structure. This had to be republican, as the exercise of power would be devolved, via federal structures, to local assemblies. In addition, the state’s foundations would be constantly augmented through procedures of collective constitutional revision and amendment. Constituent power thus ends up being, once more, an alternative to sovereignty.