Politics & Government
Constituent Power in Revolutionary Constitutional Transitions
Quick fact
In revolutionary transitions, the 'constituent power' of the people to make a new constitution is often exercised by an assembly or movement acting in bold violation of the existing legal order—creating the founding paradox that the new constitutional legitimacy rests on an extralegal act.
Why this is interesting
When a nation tears up its constitution and starts over, where does the authority to do so magically come from? And why does the world accept the result as law?
Read the full explanation
Understanding Constituent Power in Revolutionary Constitutional Transitions
Think of a constitution as the 'instruction manual' for a government. It sets up the rules for how laws are made and enforced. Normally, any change to the constitution must follow the rules already inside it. But a revolution is different: it's like throwing out the instruction manual entirely and writing a brand new one. The power to do that—the power to create the fundamental rules themselves—is what political thinkers call 'constituent power'. In a revolution, this power is usually attributed to 'the people', but it's often exercised by a revolutionary assembly or a popular uprising that acts outside all existing legal rules. For example, in the French Revolution, the Third Estate declared itself the National Assembly and started writing a new constitution, even though they had no legal right to do so under the existing monarchy. This act—creating law from a place outside law—is the heart of the concept.
A deeper explanation
The mechanism of constituent power hinges on a distinction between two levels of legal authority. On one level, there are ordinary laws, which are created and changed by institutions according to the constitution—these are 'constituted powers'. On a higher level sits the 'constituent power', which is the authority to create the constitution itself. In stable times, this constituent power is dormant or 'silent', because the constitution provides a legal path for its own amendment. But in a revolution, the existing constitution is rejected entirely, so the constituent power must be exercised through extralegal means. This creates a paradox: the new constitution claims legitimacy, but it was born from an act that was illegal under the old order. How can something illegal create legal authority? The French thinker Emmanuel Sieyès argued that the nation's constituent power is the ultimate source of all legitimate law, and it exists before and above the constitution. Thus, when the nation's representatives exercise constituent power in a revolution, their act is not bound by the old rules because the old constitution is already void. The new constitution becomes legitimate because it expresses the will of the people, even if the process was legally irregular. This paradox remains central to constitutional theory and explains why revolutionary transitions often provoke intense debates about legal continuity and legitimacy.