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Philosophy

Constituent Power in Revolutionary Constitutionalism

Quick fact

In revolutionary constitutionalism, the constituent power—the people—exists before and above any written constitution, meaning they can legally break the very laws they created to install a new order.

Why this is interesting

Think of a constitution as the software of a nation. But who has the authority to write that software, and what happens when the people decide to hit 'reset'?

Read the full explanation

Understanding Constituent Power in Revolutionary Constitutionalism

Imagine a group of friends forming a club. At first, they are just a loose group—no rules. When they decide to create a constitution, that decision comes from the group as a whole; this is constituent power. Once the constitution is written, it creates offices (president, members, courts)—these are constituted powers. In revolutions, the people reclaim their constituent power and act outside the old rules. For example, in 1787, the U.S. Constitution was written not by the government under the Articles of Confederation but by a special convention claiming to represent 'We the People.' They ignored the amendment process to create a whole new legal order.

A deeper explanation

The core principle is a hierarchy: constituent power is the ultimate source of legal authority; constituted powers are merely its creatures. This idea, developed by theorists like Sieyès during the French Revolution, holds that the people's will cannot be bound by the rules they create. When a revolution occurs, the old constituted powers are swept away because their authority came from a constitution that no longer expresses the people's will. Of course, this raises a paradox: how can an act that breaks the law be legal? Revolutionary constitutionalism answers that the legal order itself is derived from the people, so when they act as the constituent power, they are not violating law—they are creating it anew.

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