Inherent Constraints on Constituent Power

This article argues that recent attempts to domesticate the concept of constituent power by appeal to inherent liberal-democratic constraints on its exercise are untenable. The article first outlines the conceptual background and some of the underlying motivations for the inherent constraints thesis. It then critically examines two attempts to defend the inherent constraints thesis, by reference to liberal and democratic principles respectively. These attempts, I contend, rest on a conflation of strong and weak popular sovereignty and assumptions about political legitimacy that should be kept conceptually distinct from the theory of constituent power. Finally, the article argues that the inherent constraints thesis ultimately derives from a failure to attend to the ‘ideal’ or ‘central’ concept of the constitution. The conclusion to draw from these arguments is that while there may be some minimal constraints on constituent power, these will not be inherently liberal-democratic in nature.