The Constituent Power
Although the modern age is often defined as the age of constitutionalism, the constituent power has generally not been considered central to political and legal thought, remaining an elusive, indeterminate concept of marginal theoretical interest. 1989 changed that. Since then, there have been, from Central and Eastern Europe to Russia, from South Africa to Venezuela, from Afghanistan and Iraq to the European Union, multiple attempts to found new regimes and to make new constitutions. These dramatic events have placed constituent power back on the theoretical agenda. The course examines this distinct form of power, tracing its historical trajectory from early modern thought to today and explores its significance and role in modern revolutions and constitutional law. Particular emphasis will be given to how the theoretical and political dilemmas posed by the constituent power have been negotiated in historical practice. Questions related to the limitations of the constituent power, its modes of authorization, and its identification, that is, the 'who' and the 'how' of the constituent power are of central importance. The course also addresses the relationship between the constituent power and democracy and looks at the theoretical and political implications of this modern encounter. In particular, we will discuss how the constituent power relates to popular sovereignty, political representation, the separation of powers, resistance, and systems of rights. We intend to critically engage with the normative aspects of the constituent power with respect to the question of democratic legitimacy, amendment provisions, the possibility and/or desirability of popular foundings, and the issue of consent, law, autonomy, and justice. Readings will include Niccol� Machiavelli, Jean-Jacques Rousseau, Emmerich de Vattel, George Lawson, John Locke, Thomas Paine, Thomas Jefferson, James Madison, Emmanuel Siey�s, Marquis.