Jump to Content Jump to Main Navigation
Unconstitutional Constitutional Amendments - The Limits of Amendment Powers by Roznai, Yaniv (16th February 2017)

Part II Towards a Theory of Constitutional Unamendability, 4 The Nature of Constitutional Amendment Powers

From: Unconstitutional Constitutional Amendments: The Limits of Amendment Powers

Yaniv Roznai

The Nature of Constitutional Amendment Powers

This chapter examines the nature of constitutional amendment powers. It serves as a base for developing a theory of unamendability, since the theoretical path for comprehending any limitation on the amendment power must commence by understanding the nature of that power. The hypothesis is that perceptions regarding unamendability must be rooted in the distinct organization of the State’s powers and of the relationship between governmental institutions and ‘the people’. The manner in which we grasp the nature of the amendment power affects our thinking about its scope. In other words, a basic inquiry into the nature of the amendment power simultaneously develops into an inquiry into its limits.1

The chapter begins by illuminating the theoretical distinction between constituent power and constituted power. It then explores possible explanations of the amendment power, both as a constituent power and a constituted power. It proposes that the amendment power has to be regarded as sui generis, a unique power situated in a grey area between the two powers. The amendment power can be distinguished from constituent power in that it ought to be comprehended in terms of delegation, but it is also a distinctive form of a constituted power. Understanding the exceptional nature of the amendment power as a secondary power serves as the theoretical starting point for understanding its limited nature and scope.

Constituent Power and Constituted Power

Constituent power is the power to establish the constitutional order of a nation. It is ‘the generative principle of modern constitutional arrangements’.2 In the modern era, the nation’s constitution receives its normative status from the political will of the ‘people’ to act as a constitutional authority.3 The ‘people’ are the subject and the holder of the constituent power. The notion that all powers originate from the people is now explicitly stated in various constitutions.4

It is often argued that the concept of constituent power is relatively modern, emerging almost simultaneously in French and North American revolutionary thinking.5 In order to understand the features of that principle, one has to return to Abbé Sieyès, who stated the following in a speech before the National Assembly in 1789: ‘Une Constitution suppose avant tout un pouvoir constituant.’6 Sieyès distinguished between constituent power (pouvoir constituant) and constituted power (pouvoir constitué). In his famous political pamphlet Qu’est-ce que le Tiers état? he writes that ‘in each of its parts a constitution is not the work of a constituted power but a constituent power’.7 Constituent power is the extraordinary power to form a constitution. In other words, it is the immediate expression of the nation, and thus its representative. It is independent of any constitutional forms and restrictions. On the other hand, constituted power is the power created by the constitution and is an ordinary, limited power, which functions according to the forms and mode that the nation grants it in positive law.8 Hence, contrary to constituted powers, constituent power is free and independent from any formal bonds of positive law created by the constitution. ‘The nation’, Sieyès wrote, ‘exists prior to everything; it is the origin of everything. Its will is always legal. It is the law itself’.9 Of course, Sieyès developed this distinction with a particular political aim and within a specific historical context, thereby justifying the founding of a new constitutional order.10

Whereas Sieyès is famous for his contribution to the refinement of the distinction between constituent and constituted power, he was not the first to articulate this distinction.11 It can be traced back to Bodin’s distinction between sovereignty, the locus of authority, and the government, which is the instituted form through which the sovereign rules. Bodin’s idea of majestas or sovereignty was further developed into the idea of a ‘double sovereignty’, that being majestas personalis or a personal sovereignty held by the ruler and majestas realis or a ‘real sovereignty’ held by the people.12 The latter is superior to the former, as Johannes Althusius wrote:

if sovereignty is therefore twofold, of the realm and of the king, as Bodin says, I ask which is greater and superior to the other? It cannot be denied that the greater is that which constitutes the other and is immortal in its foundation, and that this is the people.13

Likewise, in his Politica Sacra et Civilis (1657), George Lawson claimed that a clear distinction exists between the power of the constituted commonwealth to make a law, or the ‘personal Majesty’, and the superior power of the constitution, or the ‘real Majesty’. This latter power is the power ‘to constitute, abolish, alter, reform forms of government’, which can be exercised once the government has dissolved itself by breaching the people’s trust.14 This resembles John Locke’s claim that the people possess a ‘supreme power’ to establish, alter, and even overthrow an existing form of government when the government acts in contrast to the trust reposed in it. This original constituting power is superior to the ‘constituted commonwealth’.15 This notion re-appeared in Daniel Defoe’s thinking; roughly eighty years before Sieyès’ distinction between constituent and constituted powers, Defoe wrote about the right of the people to preserve their liberties in the case that branches of the constituted power failed. According to Defoe, the constituting power is superior to the subordinated constituted power, and the latter cannot act against the power which formed it or alter its own foundation.16 Understanding the community’s constituent power to create and alter constitutional regimes is important, yet it was limited to explaining the right of resisting an oppressive regime. However, Sieyès’ conception of constituent power seems to be different. It is not restricted to those circumstances where the government was dissolved by breaching trust or tyranny. Instead, constituent power can be legitimately reclaimed at any time.17 The constitution, as a positive law, emanates ‘solely from the nation’s will’.18 For Sieyès, constituent power is unlimited, for ‘it would be ridiculous to suppose that the nation itself could be constricted by the procedures or the constitution to which it had subjected its mandatories’.19 The nation is free from constitutional limits. ‘Not only is the nation not subject to a constitution’, Sieyès insists, ‘it cannot be and should not be’.20 The sovereign people, according to his idea of constituent power, are exterior to their institutions.21 In that respect, the people are sovereign.

Giorgio Agamben raises the concern that identifying constituent power with the people’s constituent will blur the distinction between it and sovereign power.22 For Antonio Negri, the concepts are not identical: sovereignty arises upon the establishment of the constituent power and is ‘a summit, whereas constituent power is a basis’.23 It appears that these are two distinct conceptions of ‘sovereignty’. One is the juristic expression of sovereignty, which concerns supreme power within institutional arrangements that were constituted during or after the formation of the state. Another is political sovereignty, which is the power to establish a State, synonymous with the idea of constituent power.24 This latter concept is compatible with the definition of that term by Andreas Kalyvas, who states that ‘the sovereign is the one who makes the constitution and establishes a new political and legal order’.25 To minimize confusion, this book employs the term constituent power throughout. However, where ‘sovereignty’ is utilized, it is with reference to Kalyvas’ definition of the term.

Carl Schmitt developed the doctrine of constituent power almost 140 years later. Like Sieyès, Schmitt declared in his 1928 book, Verfassungslehre, that ‘the constitution does not establish itself’; rather, it ‘is valid because it derives from a constitution-making capacity … and is established by the will of this constitution-making power’.26 This verfassungsgebende Gewalt or constitution-making power ‘is the political will, whose power or authority is capable of making the concrete, comprehensive decision over the type and form of its own political existence’.27 For Schmitt, the constitution is created through the act of political will and is composed of fundamental political decisions regarding the form of government, the State’s structure, and society’s highest principles and symbolic values. This represents ‘the core constitutional identity of a democratic political order’.28 Schmitt accepted Sieyès’ distinction between constituent and constituted power and conceived constituent power to be unlimited and unrestricted by positive constitutional forms or rules. Being external to and above the constitution, it cannot be regulated or restricted by legal procedures or process, and it is never exhausted within the positive juridical constitution.29 Any attempt to formalize it would be ‘akin to transforming fire into water’.30

What is the relationship between constituent and constituted power, and why is it relevant to our enquiry? The conceptual relationship between constituent and constituted powers is that of subordination. Constituted powers are legal powers, or competence, derived from the constitution and limited by it. They owe their existence to the constituent power and depend on it; thus, constituent power is superior to them. In contrast to constituted power, constituent power manifests unlimited power, at least in the sense that it is not bound by previous constitutional rules and procedures.31 On that account, the conceptualization of a certain power as constituent or constituted carries with it significance as to its scope. As Martin Loughlin and Neil Walker write, ‘the legal norm remains subject to … the expression of the constituent power of the people to make, and therefore also to break, the constituted authority of the state’.32

This distinction between constituent and constituted powers is therefore imperative for any investigation regarding possible limitations on the amendment power, since if this power is conceptualized as constituent power, then it should be regarded as unlimited. In other words, it is not bound by prior constitutional rules. If it is conceptualized as a constituted power, it is subordinated to the constitution. As the Luxembourgian scholar François Laurent explained in 1869, the ordinary powers, including the legislative itself, established by the constitution must obey the superior constituent power. However, while the ordinary legislature may not change the constitution nor derogate from it, the constituent power may do so.33 This classification seems extremely thorny, though, when one has to assess the nature of the constitutional amendment power.

The Amendment Power as Sui Generis

The constituent power establishes the constitution that, in turn, regulates the ordinary constituted powers, such as the executive, legislative, and judiciary, and governs everyday political life. Once the constituent power has fulfilled its extraordinary constituting task, it ‘becomes dormant’ and, from that moment, public authority is exercised under the constitution.34 Thus, by establishing a constitution, the constituent power is ‘digging its own grave’.35 To use James Bradley Thayer’s words, ‘The sovereign himself had retired into the clouds’.36 However, the constitution also establishes a mechanism for its own amendment. What is the nature of this mechanism? Does it express the constituent power or an ordinary constituted power assigned with the task of amending the constitution? The struggle over concepts should not be regarded as an intellectual exercise divorced from any real consequences, since labelling the amendment power as a constituent or constituted power bears implications for its scope.

The amendment power is a peculiar and extraordinary authority, different from ordinary lawmaking power and puzzling from the perspective of the pyramid of hierarchy of legal norms.37 This is because, as Stephen Holmes and Cass Sunstein observe, it ‘does not fit comfortably into either category. It inhabits a twilight zone between authorizing and authorized powers … The amending power is simultaneously framing and framed, licensing and licensed, original and derived, superior and inferior to the constitution.’38

On the one hand, one might suppose that the amendment power expresses the ultimate constituent power. Amendment rules, Sujit Choudhry argues, ‘stipulate where the ultimate locus of political sovereignty lies’.39 Arguably, if ‘the people’ control the government qua constituted powers through the constitution, then ‘control over the authority to amend the text represents the highest power in the nation’s political life’.40 Ostensibly, if it is permissible for ‘the people’ to re-shape their constitution, then amending a constitution, like constitution-making, is part of the people’s constituent power.41 Viewed in that respect, the amendment process serves as a mechanism for constitution-makers to share part of their authority with future generations so that every generation holds a part of this constituent power.42 This is the prevailing approach of American constitutionalism, where it is assumed that, after the establishment of the US Constitution, Article V, through which ‘the people’ may amend the Constitution, contains the constituent power.43 ‘Americans’, as Gordon Wood wrote, ‘had in fact institutionalized and legitimized revolution’.44 This approach may be supported by the following three arguments:

Supremacy argument: Constituted powers are bound by the constitution. By means of constitutional amendments, ‘the people’ may alter constituted powers. Therefore, this power differs from ordinary constituted powers and is superior over them. It therefore must be of a constitutive nature. Not only can it modify other constituted powers, but it may also arguably change its own boundaries, since it possesses what is known as Kompetenz-Kompetenz or ‘competence over the competence’.45

Procedural argument: Most constitutions provide different procedures for ordinary legislation and constitutional amendments (see Chapter 6). They dedicate a special procedure that emphasizes the exceptional process of constitutional amendment. Often, it is not merely a matter of a different process, but one of organs; the amendment power is often exercised by bodies that are separate from the ordinary legislature—for example, constituent assemblies—or that supplement it, for example, referendums that ratify amendments. The procedures and organs that are involved in the constitutional amendment process are distinct from those that are involved in the ordinary legislative process. This distinction strengthens the argument that the amendment procedure is not an ordinary constituted power, but rather is different from and more unique than ordinary lawmaking.46 As argued below, this claim is built on a fallacy, since the mere constitutional stipulation of an amendment procedure points to its instituted and thus constituted, not its constituent, nature.

Consequential argument: From a juridical perspective, constituent power is the source of constitutional norms’ production. Through the amendment procedure, the amendment power is also the source of constitutional norms’ production. If constituent power produces constitutional laws that govern constituted powers, then amending those constitutional laws, or producing new ones through amendments, is an exercise of constituent power.47 Based on the legal consequences of the exercise of amendment power, it may be argued that amending the constitution is a constitutive action. Amending a constitutional provision creates the same legal product as writing a new article. Therefore, amending the constitution is arguably an exercise of a power similar to that which created the constitution in the first place, namely constituent power.

On the other hand, the amendment power may simply be regarded as a constituted power. True, the amendment power is unique because of its remarkable capacity to reform governmental institutions; yet it is still a legal competence defined in the constitution and subject to constitutional limits.48 Even if one applies the term Kompetenz-Kompetenz here, the constituent power declares the constituted power competent to define its competences, but only within the limits set in the constitution.49 Accordingly, the amendment power is a legal competence established in the constitution and regulated by it. If all power derives from the constitution, the amendment power is a constituted power just like the legislative, judicial, or executive powers. It is a constituted power with a special capability, but still a defined and limited one.50 For the reason that it is a legally defined power originating in the constitution, it cannot ipso facto be a genuine constituent power.

The amending power possesses characteristics of both constituent and constituted power, hence its puzzling nature. Some claim that the amendment power is a ‘constituent power in nature and a constituted power in function’,51 while others argue the complete opposite—it is constituted by nature, but functions as a constituent power.52 Amendment powers are multifaceted. They carry dual features of both constituent and constituted powers. Accordingly, the question of their nature is a knotty one. This book argues that, since this power does not fit comfortably into any of these categories, it should neither be regarded as another form of constituted power nor equated with the constituent power; it is a sui generis power.

The Secondary Constituent Power

The distinction between ‘original’ and ‘derived’ constituent powers

‘To know how the constitution of a given State is amended’, A. V. Dicey wrote, ‘is almost equivalent to knowing who is the person or who are the body of persons in whom, under the laws of that State, sovereignty is vested’.53 Dicey is not stating that sovereignty is vested in the amendment authority which is ‘almost equivalent’ to the sovereign. This terminology of ‘not quite’—but ‘very nearly’—sovereignty resembles Max Radin’s two notions of sovereignty. Radin distinguished between real sovereignty or ‘hundred per cent, simon-pure sovereign’, which can materialize only in revolutions, and ‘minor or lesser sovereigns’, created by the real sovereign. The amendment power, created by the ‘original sovereign’, is a lesser sovereign, almost ‘coextensive in power with itself’. It is ‘almost sovereign’ or ‘pro-sovereign’, situated between the real sovereign and the lesser sovereign, such as governmental functions.54 The basic presupposition underpinning Radin’s argument, and the one which this book advances, is that the amendment power is a special power, weaker than the constituent power but greater than the ordinary legislative powers. This argument revives and relies upon the French doctrine that distinguishes between pouvoir constituant originaire, or original constituent power, and pouvoir constituant derive, or derived (or derivative) constituent power. The first is a power that is exercised in revolutionary circumstances, outside the laws established by the constitution, and the latter is the power exercised under legal circumstances according to rules established by the constitution.55 Where does this idea originate? It is noteworthy that the notion cannot be attributed to Sieyès, who did not distinguish between constituent power and amendment power and for whom the sovereign constituent power could not be limited.56

It appears that this distinction between original and derived constituent powers was developed during the debates of the French National Assembly on the 1791 Constitution. At the Assembly, debates took place on how the Constitution ought to be amended in light of the fragility of the constitutional project. It was seriously considered that there should be a prohibition on any amendments for thirty years. Eventually, the process that was adopted was that the Constitution would be unamendable for ten years, after which time amendments could take place through an Assembly of Revision and after the approval of three successive legislatures.57 During the debates, some argued that the Assembly could not limit, or even procedurally frame, the constituent power, while others sought to minimize the likelihood of future constitutional changes. Nicolas Frochot proposed a solution to this conflict, suggesting that there be a differentiation between partial and total change to the Constitution, each involving a fundamentally different power. Therefore, Frochot proposed a certain procedure for partial change and another, more complex one for total change. While his proposal was rejected, the distinction he made allowed others, including Antoine Barnave, to justify the ability to limit and frame potential constituent power without forfeiting the idea of an unlimited constituent power. Barnave explained that the total change of the Constitution could not be predicted or controlled by the Constitution, because it is an unlimited power belonging inherently to the nation. However, the possibility of amending the Constitution is of a somewhat different nature that may be limited and circumscribed. This discourse reveals the distinction between original and derived constituent power.58

The above distinction is evident in Title VII, Article 1 of the 1791 Constitution, which, while acknowledging the nation’s ‘imprescriptible right to change its constitution’, limits the amendment power procedurally ‘by the means provided in the constitution itself’ and substantially by allowing amendments only to ‘the articles of which experience shall have made the inconveniences felt’. To support the argument regarding limited amendment power, it is important to draw attention to Title VII, Article 7, which required members of the Assembly of Revision to take an oath ‘to maintain … with all their power the constitution of the kingdom’.59 Thus, according to the Constitution of 1791, the amendment power is conditioned by preserving the entire Constitution; amendment power is not constituent power, and abrogation of the Constitution is not similar to its amendment.60

Explaining this special, yet legally defined power, Julien Oudot wrote that some constitutions have settled the form in which the nation would operate by a subsequent change in its political mechanism. They have organized aside the constituted power a regular constituent power.61 The amendment process is ordinarily stipulated within the Constitution through those constitutional provisions that regulate its procedure. It is a power established by the superior constituent power and, as Claude Klein explains, the original constituent power is the power to establish an ordre juridique nouveau, or new legal order. It is an absolute power, which may set limits for the exercise of amendments, such as determining which body has the authority to amend the Constitution, and other conditions, for example procedural and substantive limitations. The derived constituent power acts within the constitutional framework and is therefore limited under the terms of its original mandate.62 In the same vein, Markku Suksi clarified that, while amendment powers are ‘the highest normative powers as defined and limited in the constitution’, the constituent power is the

extra-constitutional, pre-constitutional, latent and inalienable authority of the people to adopt a constitution for itself in a situation where the people’s power of enacting constitutional provisions or revising the current constitution completely or drafting a constitution in a constitutional vacuum is not subjected to any restrictions of a previous or a current constitution.63

Kemal Gözler recognized two schools of thought—formal and substantive—as the basis for the distinction between the original and derived constituent powers.64According to the formal theory developed by French positivist scholars, original and derived constituent powers are distinguished by the form of their exercise. Original constituent power is exercised in a legal vacuum, whether in the establishment of the first constitution of a new State or in the repeal of the existing constitutional order, for instance with regime change. It acts outside the forms, procedures, and limits established by the constitution. On the other hand, derived constituent power, or the juridical concept of constituent power, is a constraint power that acts according to the formal procedures and rules that were established by the constitution.65 According to the traditional positivist approach, the nature of the original constituent power is extra-legal and a pure fact. Gözler makes an important clarification: original constituent power does not have to be exercised for revision of the entire constitution; it may be exercised even for amendment of a single provision outside of the constitutional amendment process. Similarly, the exercise of the derived constituent power may cover the entire constitution.66 Famously, Kelsen does not even tackle the question of the constituent power, but rather claims that the question of the basic norm or obedience to the historically first Constitution is assumed or presupposed as a hypothesis in juristic thinking.67 Likewise, for political scientists such as Carl Friedrich, constituent power is not a de jure power but a de facto one, which cannot be brought under ‘four corners of the Constitution’.68

For the substantive theory, the main criterion distinguishing between original and derived constituent powers is the different scope of their ability to influence the substance of the Constitution. As noted in Chapter 2, this school of thought flourished in the 1920s and 1930s in American constitutional writings regarding implicit unamendability. Nonetheless, it was Carl Schmitt who advanced this theory. Schmitt distinguished between the constituent power and the amendment power. The first is the power to establish a new Constitution, whereas the second is the power to amend the text of constitutional laws currently in force, which, like every constitutional authority, is limited. Schmitt’s doctrine is built upon a distinction between the Verfassung, or ‘the Constitution’, which is the fundamental political decisions of the constituent power, and ordinary Verfassungsgesetz, or ‘constitutional laws’, which are constitutional norms or provisions but which lack any true fundamental character.69 The constitution represents the polity’s constitutional identity, which cannot be amended, and constitutional laws regulate inferior issues. The amendment process is designed for the textual change of constitutional provisions, but not of fundamental political decisions that form the substance of the constitution:

The authority ‘to amend the constitution’ … means that other constitutional provisions can substitute for individual or multiple ones. They may do so, however, only under the presupposition that the identity and continuity of the constitution as an entirety is preserved … The authority for constitutional amendment contains only the grant of authority to undertake changes, additions, extensions, deletions, etc., in constitutional provisions that preserve the constitution itself. It is not the authority to change the particular basis of this jurisdiction for constitutional revisions.70

Thus, for Schmitt, an amendment cannot annihilate or eliminate the constitution. It cannot abolish the right to vote or a constitution’s federalist elements, or transform the president into a monarch. These matters are for the constituent power of the people to decide, not the organs authorized to amend the constitution. An amendment that transforms a State that rests on the power of the people into a monarchy, or vice versa, would be unconstitutional.71 Likewise, for Olivier Beaud, a hierarchical relationship exists between original constituent power and the amendment power. The original constituent power is sovereign, while the revision power is always limited. The difference lies in their purpose: whereas the former deals with fundamental provisions, the latter deals with secondary objects.72

Integration: A theory of delegation

Gözler argues that these two schools of thought are fundamentally irreconcilable, on the grounds that according to the formal theory, as opposed to the substantive one, the derived constituent power is limited only by the formal conditions under which it operates.73 This narrow approach should be rejected. The two theories should be regarded as mutually reinforcing, rather than exclusive. In order for the formal and substantive theories to coexist, the amendment power needs to be comprehended in terms of delegation. Delegation affords the legal framework, even if not always consciously articulated, to rationalize this state of affairs surrounding the nature of the amendment power. Alf Ross explains that:

Delegation has, as it were, the character of a process of propagation—a new competence is created until further notice alongside the old one. It is precisely by reason of these differences that we speak, not of transfer, but of entrusting or delegation of competence. Further, in the concept of delegation is implied a vague idea that the entrusting of competence is in the nature of something exceptional in that it permits the delegatus to ‘appear in the role of legislator.’ This means that the delegatus exercises a function which, seen in the light of a certain presupposed norm or standard, might be expected to be exercised by the delegator himself.74

Through the amendment provision, ‘the people’ allow a constitutional organ to exercise a constituent authority—the authority to constitute constitutional laws.75 When the amendment power amends the constitution, it uses a legal competence delegated to it by the primary constituent power. In other words, the amendment power is a delegated, legal authority that arises directly from the constitution. A distinction exists between constituent power and amendment power, the latter being a legal competence authorized to exercise a certain legal action, namely amending the constitution. But why does this infer limitability? Surely, one may claim that this is a ‘clear case of a non-sequitur’ since it does not follow from the distinction between original and derived constituent power that the amendment power is limited, ‘for it is conceptually possible for the derivative constituent power to observe the procedural requirements and, at the same time, derogate the Constitution or replace it with a new one’.76 ‘Why does the power to amend the Constitution’, Carlos Bernal asks,

not comprise the power to change fundamental political decisions? If the foundation of the constitution is only a contingent social fact, namely, the result of a political decision, why should it be impossible to change the essential elements of the constitution by means of another contingent social fact, that is, a political decision made by means of a constitutional amendment?77

One possible reply is that modern studies of delegation now adopt the model of the ‘principal–agent’ in order to define the act of delegation. The one who delegates authority, and has the original constituent power, is the principal, while the one to whom the authority is delegated is the amendment authority and represents the agent.78 The amendment power is a delegated power exercised by special constitutional agents. When the amendment power amends the constitution, it thus acts per procurationem of ‘the people’, as their agent. Having a principal–agent relationship, the delegated amendment power is subordinated to the principal power from which it draws its legal competency.79 Thomas Paine reminds us that ‘All delegated power is trust’.80 Since the amendment power is delegated, it ought to be regarded as acting as the trustee of ‘the people’ in their original constituent power.81 True, it has the ‘supreme’ amendment power, but it is only a fiduciary power to act for certain ends.82 Hence, contrary to the original constituent power, which is unlimited by previous constitutional provisions and procedures, the delegation of the amendment power inherently entails certain limitations.

Delegation and trust are conceptual keys to the nature, and consequently the scope, of amendment powers. The trustee, or the amendment authority, has a legal right of possession of the trust corpus, or the amendment power, conditional on its fiduciary obligation to comply with the terms of the trust (procedural or any explicit or implicit substantive requirements) and pursue the end it was established to advance: to amend the constitution. Due to its nature, the trustee is always conditional, and thus the fiduciary amendment power necessarily entails limits. Through Article V of the US Constitution, as Akhil Amar argues, ‘the people’ delegated the amendment power to ordinary government and limitations on the amendment power exist only when it is exercised by delegated powers following from ‘the people’.83 Likewise, William Harris correctly claims that when the sovereign constitution-maker acts as sovereign, ‘the notion of limits on constitutional change is inapposite’. However, ‘when the machinery of government is acting as the agent of the people in its sovereign capacity, the notion of limits not only makes sense; it is necessary’.84 The legal framework of delegation is by itself characterized by constraints.85

However, one may claim that even though the amendment power is delegated, it is still limitless, since it represents the unlimited sovereign. The representation of an unlimited constituent power must logically result in a similar unlimited amendment power. Such an argument should be rejected. There is a hierarchical relationship between the grantor and the receiver: ‘the agent is never equal of the principal … the Sovereignty as organised within the Constitution is the smaller and therefore cannot … be understood to have been vested with the full amendatory powers which the Sovereignty at the back of the Constitution inherently possesses.’86

How does the theory of delegation manage to integrate the formal and substantive theories? First, delegation theory is not restricted to the substance of amendments. The amendment power must obey the procedure as prescribed in the constitution. Similarly, it is required to observe those explicit, and also substantive—but not necessarily procedural—limits set upon it, as formally stipulated in the constitution.87 Explicit unamendability expresses the idea that exercise of the amendment power, established by the constitution and deriving from it, must abide by the rules and prohibitions formally stipulated in the constitution. Again, as demonstrated in Chapter 1, this unamendability includes substantive limits from different types. Second, delegation theory is not restricted to form, but also concerns substance. The delegated amendment power, as a rational understanding of that delegation, must be substantively limited, whether these limits are explicitly stated in the constitution or not. This is exemplified in Chapter 2 and further developed in Chapter 5. Therefore, rather than being exclusive, the formal and substantive theories distinguishing between the constituent power and amendment power mutually reinforce one another.

Terminological clarifications

a)  Primary and secondary constituent powers

Due to the complexity of the concept of the amendment power and its relationship with the constituent power, various versions have developed in the literature to describe these concepts. In the American literature, it was often common to distinguish between framing power and amending power—the first is the power to establish a constitution and the latter the power to amend it.88 The German often term the amending power verfassungsändernden Gesetzgeber, meaning the ‘secondary constitutional lawgiver’ or ‘amending legislature’.89 In French constitutional discourse, various terms have been used. Constituent power is often termed simply pouvoir constituant, or alternatively pouvoir constituant originaire, pouvoir constituant initial, or pouvoir constituant stricto sensu. The amending power is often termed pouvoir constituant dérivé, pouvoir constituant institué, pouvoir de révision constitutionnelle, pouvoir de révision de la constitution, or even pouvoir constituant constitué.90 Some of these terms, as Holmes and Sunstein note, are oxymoronic. For them, the term ‘derived constituent power’ is ‘farfetched’.91 In order to elude any confusion, Schmitt plainly rejected the use of the term ‘constituent’ to describe the amendment power. Similarly, Ramaswamy Iyer argues that the amendment power is merely a power granted to Parliament under the constitution: ‘“Amending power” is a good enough term for this’, he claimed; ‘nothing is gained by calling it “constituent power”’.92

The oft-used terms are imprecise. Both the constitution-making and constitution-amending powers are constitutive in the sense that these are powers to constitute constitutional rules. Nonetheless, the two are not identical. As for the constitution-making power, I reject the use of the term ‘original constituent power’. A constitution always bears a ‘relational account’.93 A new constituent process never acts in a tabula rasa or as a pure vacuum, and some political institutions must already exist. It never really starts de novo.94 Additionally, in practice, constitution-making takes many different forms. True, some constitutions were formed in revolutionary circumstances, breaking the previous constitutional order, or during state-building. Others were constituted through international efforts or imposed by foreign and external forces, such as in the cases of Japan and Germany after 1945, or post-2003 Iraq.95 Importantly, the constitution-making process is often exercised in continuity with historic or existing laws or in accordance with pre-determined rules, as in post-1989 Eastern Europe and South Africa.96 Therefore, constituent power is never purely original.97 It is original only in the sense that, by its nature, it does not necessarily derive from nor is bound to prior or existing constitutional rules. Therefore, throughout the rest of this book, the term ‘primary constituent power’ will be used generally to describe the basic constitution-making power. It is primary not only because it is commonly the initial action, but also because it is principal in its relationship with the amendment power. Congruently, instead of derived constituent power, the term ‘secondary constituent power’ will be used to describe the constitutional amendment power. It is secondary not merely because it usually comes after the constitution-making process chronologically, but also because it is subordinated to the primary constituent power and inferior to it. No doubt, old habits are hard to break, but this terminology of primary and secondary constituent powers manifests more properly these powers’ unique nature.

b)  Power and authority

The constitution-making power to form a constitutional order is possessed by ‘the people’. Therefore, it was suggested that it might be treated as a kind of a right.98 In contrast, the amendment power is a power authorized by the constitution. It should be understood as a power-in-law, or a competence. Competence is ‘the legally established ability to create legal norms’.99 The amendment power is the legal competence conferred upon certain organs that are empowered with the function to lay down constitutional rules according to a process prescribed within the constitution. Amendment provisions established this ability by stipulating the necessary conditions, whether personal, procedural, or substantive, for the exercise of the amendment power.100

The term power is closely related, though not identical, to authority. Authority usually refers to a power vested in an office or role, but it is a limited, restricted, and contained power. Authority is a power that may only be legitimately activated through pre-defined channels. Since it emerges through a process of legitimation, there is a correlation between authority and legitimacy.101 Hannah Arendt reminds us that the distinction between power and authority is an ancient one: the Roman maxim states ‘Cum potestas in populo auctoritas in senatu sit’, meaning ‘the power is in the people and the authority is in the Senate’.102 This proverb could mutatis mutandis apply to the analysis here. While the aforementioned primary constituent power is a true power that rests with ‘the people’, the secondary constituent power, namely the amendment power vested in a constitutional organ, is an authority. It is an empowered legal competence that is established by the constitution, but it may be limited by it. Therefore, throughout this book, the terms ‘amendment power’ and ‘amendment authority’ are used interchangeably and whenever amendment power is used, it should be understood as a legal power.

Unamendability and Primary Constituent Power

A three-track democracy

For Richard Parker, ‘the first truth about the law’ is that ‘nothing lasts forever’. Parker argues that constitutions are embedded within the idea of populism, or in other words, the liberty of people to shape and reshape their society.103 Indeed, unamendability should not be viewed as an absolute entrenchment. Unamendability limits the delegated amendment power which is the secondary constituent power, but it cannot block the primary constituent power from its ability to amend even the basic principles of the constitutional order.104 Recall that once a constitution is constituted and the primary constituent power has accomplished its task, a constitutional organ, namely the amendment authority, is granted the legal competence of revising the constitution. However, what happens to the constituent power?

The theory of delegation rejects an approach in which constituent power is exhausted after the constitution’s establishment and maintains that ‘the people’, or the grantor, always possess the power to establish and change the constitutional order. As Carl Friedrich notes, ‘no matter how elaborate the provisions for an amending power may be, they must never … be assumed to have superseded the constituent power’.105 For Antonio Negri, any legal approach to constituent power fails since constituent power can come ‘from a void and constitutes everything’; it is a purely creative and revolutionary power of the multitude that can disrupt constituted boundaries.106

Some regard the conception of a formless and limitless power of ‘the people’ to break any constitutional bounds at any time as a dangerous idea that is open to abuse. Arendt, for example, writes about

the extraordinary ease with which the national will could be manipulated and imposed upon whenever someone was willing to take the burden or the glory of dictatorship upon himself. Napoleon Bonaparte was only the first in a long series of national statesmen who, to the applause of a whole nation, could declare: ‘I am the pouvoir constituant’.107

Thus for Arendt, the legacy of a radical constituent power is ‘a poisonous recipe for permanent revolution’ by those who claim the absolute pouvoir constituant in the name of ‘the people’.108 Indeed, experience teaches us that dictators have seized governmental powers through revolutionary acts or coups, claiming to be the bearers of the constituent power.109 More recently, David Dyzenhaus has argued that the question of constituent power exists outside of normative constitutional theory. He urges constitutional theorists to avoid the idea of constituent power, which has its basis outside of the legal order, and to focus instead on the question of the constitution’s authority as completely internal to the legal order founded on the intrinsic morality of law.110

In contrast, Martin Loughlin argues that ‘constitutional legality is not self-generating … Consideration of the origins of constitutional ordering invariably brings the concept of constituent power into play’.111 János Kis’ approach also seems lucid. Kis acknowledges the risks carried with the concept of constituent power, since leaders can abuse the undefinable ‘people’ for claiming to be the mouthpiece of ‘popular will’, thereby destroying democratic institutions. At the same time, Kis rejects calls to abandon the doctrine of ‘the people’s’ constituent power, since there is no other satisfactory answer but ‘the power of the people’ as the ultimate source of state power. Instead of being abandoned, constituent power should be reconceived: ‘it should be given an interpretation that, on the one hand, arrests the regress, and on the other, may not be mobilised for the purpose of totalitarian politics.’112 As Alexander Somek notes, ‘constituent power proper is not exercised by a dictator, a monarch or any other autocrat. Constituent power, rather, originates from a collective.’113 Indeed, theorists of constituent power claim it is a concept that belongs solely in the context of democratic theory. ‘To speak of constituent power’, Negri pronounces, ‘is to speak of democracy’.114 Therefore, properly construed, constituent power is the power of ‘the people’ together to make and remake the polity.

Imagine a constitution that does not prescribe an amendment process, or even explicitly states that it is completely unamendable. Would that mean that future generations are bound to live by an unamendable constitution? Surely ‘the people’ possess the power to constitute a new constitution. In the words of James Wilson, ‘as our constitutions are superior to our legislatures; so the people are superior to our constitutions … the people may change the constitutions, whenever, and however they please. This right, of which no positive institution can ever deprive them.’115 Constituted organs, including the amendment process, neither represent the primary constituent power nor consume it. This primary constituent power is neither exhausted nor is it bound by the existing constitutional limitations, including explicit or implicit unamendable provisions. Put differently, the secondary constituent power is limited by unamendability. But as a delegated authority, it can be set aside just as it can be created. Also, according to Akhil Amar, through Article V, ‘the people’, who are the source of the constitution, delegated the amendment power to ordinary government without limiting themselves. Article V thus supplements, but does not replace, popular sovereignty and majority rule. ‘The people’, by a majority of voters via referendum or special convention, retain their reserved and inalienable right to revise the constitution themselves, even outside of the amendment process. Article V, therefore, must not be considered as exclusive, since an appeal to ‘the people’ for constitutional change always remains an option.116 The authorizing primary constituent power remains in the constitutional background and can re-emerge to take its role, thereby even changing the constitution’s basic structure. It is noteworthy that the US Constitution itself was adopted in violation of the Articles of the Confederation, which were virtually unamendable.117

What unamendability, either explicit or implicit, truly means is that certain amendments establishing a ‘new constitution’ cannot be achieved through the regular amendment procedure; rather, they require a different constituent process. ‘The people’ are free to change the constitution’s fundamentals, yet this power resides not in the constitutional amendment procedure (see Chapter 5), but in the primary constituent power of the sovereign people. Vicki Jackson thus correctly views unamendability as defensible on process-based grounds; it should not be viewed as blocking all the democratic avenues, but rather merely as proclaiming that one such avenue, namely the amendment process, is unavailable. In order to legitimately achieve the sought constitutional change, other procedures that perhaps are more demanding ought to be used.118 The power to change the constitution’s basic principles is appropriately part of the primary constituent power and, like adoption of a new constitution, must flow from ‘the people’, in whom ultimate sovereignty rests and from which all authority springs.

Since even the constitution’s basic principles can be changed through the avenue of the primary constituent power, they are not permanently entrenched or eternal. However, they are solely unamendable in the sense that they cannot be altered by means of an exercise of the secondary constituent power. This approach was advanced, for instance, by the Brazilian Federal Supreme Court, which held that in order to preserve the identity and continuity of the constitutional text as a whole, the framers had to create ‘immutable provisions’ that impose limits on the secondary constituent power, but these provisions do not subordinate the primary constituent power itself.119 Likewise, the Constitutional Court of Venezuela observed that explicit unamendability can only be modified through a national Constituent Assembly, by which the whole structure and principles enshrined in the Constitution can be changed. According to the Court, unamendability does not—and cannot—apply to ‘the people’ in their capacity as holders of the constituent power.120

This approach resembles Schmitt’s idea that the primary constituent power is never exhausted and remains present ‘alongside and above every constitution’.121 According to Schmitt, whenever ‘the people’ desire to exercise their constituent power, their decision overrides the legal order: ‘It is part of the directness of “the people’s” will that it can be expressed independently of every prescribed procedure and every prescribed process.’122 Interestingly, in that respect, one can find similarities between Schmitt’s idea of the constituent power, Amar’s theory of popular sovereignty, and Bruce Ackerman’s theory of higher lawmaking.123

Ackerman famously described America as a dualist or two-track democracy. In a dualist democracy, the first track of democracy is the ordinary lawmaking of governance. ‘The people’ are mainly passive and do not play an active role, except in certain exceptional ‘constitutional moments’, which represent the second track of democracy. During these moments, they rise up and play an active role in creating and revising their Constitution. Whereas the Constitution is the arena for this higher lawmaking track, the transformative change may take place outside Article V.124 In its broad contour, Ackerman’s theory distinguishing between normal politics and constitutional moments seems to be consistent with this book’s understanding, with one important distinction: within a constitutional democracy, one has to recognize three, not two, kinds of tracks.

The legislative track is the ordinary track of political life in which constituted powers such as the legislature and executive bodies enact, enforce, and implement political decisions through ordinary legislation. This is a sub-constitutional level. The amendment track is an ordinary track of constitutional politics, through which the bodies entrusted with the authority to amend the constitution—secondary constituent powers—may enact, add, annul, or amend constitutional provisions. This is a constitutional level. This track usually involves a different process than the legislative track. Although the secondary constituent power, like the constituted power, is itself established in the constitution, it is superior to constituted powers. Yet, the secondary constituent power should not be confused with the primary constituent power. The primary constituent track is the third track of democracy. It is not part of ordinary constitutional politics; rather, it is exercised in extraordinary constitutional moments. It is not bound by prior constitutional rules and, contrary to the amendment authority, may change the basic principles of the constitutional system and even create a new constitutional order.125 The constitution cannot restrict the primary constituent power, which resides outside of it and can ‘exercise its authority de novo’.126 Hence primary and secondary constituent powers are related but distinct powers.127

We the ‘limited’ people?

The German Basic Law of 1949 raises interesting questions as to unamendability and constituent power. The German Basic Law attempts to legally positivize the primary constituent power. The final article of the Basic Law, which in a way predicts the Basic Law’s own destruction, reads: ‘This Basic Law will lose its validity on the effective date of a constitution that has been chosen by the German people in a free decision’ (Art. 146).128 While this provision recognizes ‘the people’s’ constituent power, it does not stipulate conditions or procedures for its exercise. One may claim that this lack of stipulation seems a confirmation of the primary constituent power’s extra-legal character.129

Recall that Article 79(3) of the German Basic Law includes an unamendable provision (see Chapter 1). However, is the emergence of a new primary constituent power, as acknowledged by Article 146, restricted by the principles enshrined by Article 79(3)?130 Some authors have opined that the unamendable principles also apply in such circumstances and thus would guide any future constitution-making. Others remark, in contrast, that Article 146 is a legal way to overcome the unamendable provision, while others claim that this question ought to be resolved by the Constitutional Court. In the Lisbon case, the Constitutional Court expressly left open the question of whether the German people’s constituent power might be restricted by the unamendable provisions:

It may remain open whether, due to the universal nature of dignity, freedom and equality alone, this commitment even applies to the constituent power, i.e. to the case that the German people, in free self-determination, but in a continuity of legality to the rule of the Basic Law, gives itself a new constitution.131

Jo Murkens is correct in claiming that Article 79(3) addresses only the amendment power—the secondary constituent power—dealing with Parliament’s changes to the Basic Law, whereas Article 146 foresees a new constitution adopted by the primary constituent power, which, by its nature, cannot be bound by the rules of the prior constitution. The new constitution-drafters may take Article 79(3) into account, but this would depend on their own ‘goodwill’ rather than on the nature of the unamendable provision as a legal obligation. Consequently, even though the primary constituent power is ‘constitutionalized’ within the German Basic Law, Article 79(3) is unable to bind later generations when exercising their primary constituent power.132 Article 79(3) guarantees are unamendable, not, as they are wrongfully referred to, eternal. Consequently, the Brazilian terminology, which refers to these provisions as cláusulas pétreas—meaning ‘stone clauses’ or ‘petrous clauses’133—to express their rigidity, is more accurate. In other words, even rocks cannot withstand the volcanic outburst of the primary constituent power.

Encouraging a revolution?

The amendment process is meant, inter alia, to forestall, as far as possible, revolutionary upheavals. Unamendability allegedly blocks any constitutional manner of amending certain principles. It is, thus, potentially dangerous; citizens might find unamendability to be an intolerable obstacle to political and social change and may resort to a forcible revolution in order to change it. Of course, the risk of forcible means as recourse exists even in the absence of unamendability; nonetheless, it seems that unamendability as a mechanism almost forces a society to fall back on revolutionary means to change unamendable principles, because the institutional route is blocked. It follows that in terms of constitutional dynamics, unamendability serves the exact opposite of its original purpose of preservation and stability: not only does it not prevent the change, but it invites and encourages the realization of that change in a revolutionary manner.134 Unamendability cannot strictly bind, as extra-constitutional action remains possible: ‘Ulysses’, in the words of Jon Elster, ‘would have found the strength to break the ropes that tied him to the mast’.135 This might be especially dangerous in weak democracies that lack established democratic traditions or have an apparent history of coups, because the temptation to use extra-constitutional measures might be irresistible.136 This raises the inevitable question: if the change were to occur regardless of the temporary hindrance by unamendability, would it not be better to allow it by peaceful constitutional means?137

That is, perhaps, why Tushnet suggests treating ‘an unconstitutional amendment as a pro tanto exercise of the right to revolution through the form of law, a form that allows fundamental change to occur without violence’.138 According to Tushnet, a decision to amend an unamendable provision can be understood as an exercise of the right to revolution. Retrospectively, when such an amendment is accomplished, ‘the amendment that revised a purportedly unamendable provision is the trace left by a pro tanto constitutional revolution, though one that can be accomplished without the violence we often associate with events described as revolutions in politics’.139 Tushnet’s claim, according to which ‘unconstitutional constitutional amendments’ can be regarded as revolutionary changes, is certainly compatible with this book’s thesis. As noted in the Introduction of this book, when focusing on the constitution’s substance rather than procedure, even a duly enacted constitutional amendment may be regarded as revolutionary, or in fact as a non-violent legal revolution, if it conflicts with unamendable constitutional provisions.140 However, it might be more accurate to describe such a revolutionary change not, as Tushnet claims, as ‘an exercise of constituent power itself’, but rather as an illegitimate exercise of the delegated constituent power acting ultra vires by not invoking the primary constituent power.141

The fear of revolution is a legitimate concern that should act as a warning for constitutional designers to use unamendability carefully. That said, changing unamendable subjects must not necessarily be done through forcible means. The idea that unamendability limits only the secondary constituent power, and not the primary constituent power, need not necessarily result in a call for violent, albeit extra-constitutional, changes. On the contrary, understanding a democratic constituent power simply calls for further development of how the primary constituent power may peacefully ‘resurrect’ and change even unamendable constitutional subjects. The exercise of constituent power is, of course, a crucial issue, yet one which deserves its own separate treatment.142

Unamendability’s inability to restrict primary constituent power raises doubts regarding the entire effectiveness of the unamendability mechanism. As early as 1918, Lawrence Lowell wrote that ‘the device of providing that a law shall never be repealed is an old one, but I am not aware that it has ever been of any avail’.143 Likewise, Benjamin Akzin expressed his scepticism regarding the usefulness of unamendability:

One understands that we deal here with provisions which the respective constitution-makers hold in particular esteem and to which they would like to give added protection. But if this esteem is shared by the rest of the politically-active groups, this by itself should ensure that the standard procedure for constitutional amendments would protect them sufficiently; if, on the other hand, the demand for change were to become so strong that it could overcome the standard procedure, it is hardly imaginable that its protagonists would renounce their objectives only because the Constitution says that the provision is inviolable.144

Therefore, some treat unamendability as a useless parchment barrier which may simply be ignored. Silvia Suteu and I demonstrated how certain provisions of unamendability are especially vulnerable when, in light of the crisis in Crimea in 2014, we argued that the unamendable protection of territorial integrity faces a double threat: internal, in the form of a secessionist movement, and external, in the shape of forceful annexation of territory that severely curtails the preservative promise of unamendability even when backed by a Constitutional Court with far-reaching powers of judicial review.145 But this seems obvious. Just as ‘no Constitution … can be expected to survive intact the social cataclysm involved in a true revolution’,146 no constitutional schemes, even those that expressly attempt to, can hinder the sway of real forces in public life for long, or can absolutely block extra-constitutional activity. As Arendt teaches, ‘in a conflict between law and power, it is seldom the law which will emerge as victory’.147 For example, the prohibition of the 1824 Mexican Constitution on altering the form of government did not prevent a coup d’état in which the Conservatives came to power and, in 1836, replaced the Constitution with a new one that rejected federalism.148 In Greece, notwithstanding the unamendability protection of the democratic system of government in the 1952 Constitution, the Constitution was suspended in 1967 by a military putsch, which established a military dictatorship that lasted until 1974.149 The issue of unamendability is, thus, a question both of fact and norm. As a factual matter, the ability of physical power to force prohibited changes is unquestionable. From a normative perspective, the question is whether such changes would be valid according to the standards of the constitutional order.150

A related issue is that the effectiveness of unamendability is directly linked to the effectiveness of the entire constitution. Where the constitution is mostly ignored and is regarded as a mere parchment, one cannot expect unamendability to be any more operative than the constitution’s other provisions. Thus, unamendable provisions could be de jure valid, but de facto ignored. For example, pertaining again to Greece, the 1968 dictatorial Constitution contained the unamendable provision of the previous 1952 Constitution, which protects the form of government as a royal democracy, notwithstanding the fact that in 1967, the government exiled the king from the country.151 Likewise, the Brazilian Constitutions of 1891, 1934, 1946, and 1967 protected the republican form of government from amendments, but this did not prevent the establishment of authoritarian regimes (such as the Vargas dictatorship of 1934–1945 and the military dictatorship of 1964–1988); during their rule the republican principle was severely suppressed.152

The fact that unamendability can be overridden by violent and extra-constitutional means should not severely undermine its usefulness in normal times and in States where political players understand that they have to play according to the democratic rules of the game. In that respect, unamendability is like a lock on a door: a lock cannot prevent housebreaking by a decisive burglar equipped with effective burglary tools, and even more so, the lock cannot prevent the entire door’s destruction by sledgehammer or a fire. On the other hand, if we are dealing solely with honest people, there is no need for a lock, since there is no fear that any of them will attempt to break in. The lock’s utility is in impeding and deterring those who might not overcome the temptation to exploit an easy opportunity to improve their condition at the expense of fellow men in the absence of effective safety measures. It is also a psychological mechanism to reassure ourselves that we are protected. Similarly, unamendability cannot block extra-constitutional measures, and it is not needed once the socio-political culture is that of abiding the rules and self-restraint. Karl Loewenstein was correct in observing that in times of crisis, unamendability is just a piece of paper which political reality could unavoidably disregard or ignore. On the other hand, in normal times, unamendability can be a useful red light before certain ‘unconstitutional’ constitutional changes, and it can stand firm in the normal development of political momentum.153 Therefore, whereas unamendability cannot serve as a complete bar against movements aiming to abolish the protected subjects, it is not completely useless. Unamendability mandates political deliberation as to whether the change in question is compatible with society’s basic principles or not. Gregory Fox and Georg Nolte remark that the framers of the German Basic Law believed that if an unamendable provision ‘had been presented in the Weimar constitution, Hitler would have been forced to violate the constitution openly before assuming virtually dictatorial power … given the traditional orderly and legalistic sentiment of the German people, this might have made the difference’.154 One should also mention here the unique method provided in Article 20(4) of the German Basic Law for protecting unamendability through civil action: ‘All Germans shall have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available.’ Tushnet calls this a ‘political defense’ of the eternity provision.155 Hence, unamendability and its institutional enforcement may provide sufficient additional time for ‘the people’ to reconsider their support for a change contrary to their fundamental values, and thereby even impede the triumph of revolutionary movements.156

Conclusion

To sum up the argument thus far, the amendment power is a constitutional power delegated to a certain constitutional organ. Since it is a delegated power, it acts as a trustee of ‘the people’ in their capacity as a primary constituent power. As a trustee, it possesses only fiduciary power; hence, it must ipso facto be intrinsically limited by nature. Conceived in terms of delegation, certain acts by the amendment authority could be considered as going beyond permissible bounds, since they would flout the terms of the ‘delegation’. Put differently, the understanding of the amendment power as a delegated power means that a vertical separation of powers exists between the primary and secondary constituent powers.157 As in the horizontal separation of powers, this separation results in a power block. The holder of the amendment power is not permitted to conduct any amendment whatsoever, but may be restricted, either explicitly or implicitly, from amending certain principles, institutions, or provisions. Certain constitutional decisions thus require the re-emergence of the primary constituent power and force ‘the real sovereign to return from its retirement in the clouds’158 in certain constitutional moments. Therefore, constitutional unamendability is not eternal and can be overcome or changed through the exercise of the primary constituent power.

Identifying the amendment power as a delegated authority is the first step in understanding its limited scope. Chapter 5 will explain how, according to this theoretical presupposition, the amendment power is limited, and will delve into the question of what might constitute a breach of that trust and, therefore, an impermissible amendment.

Footnotes:

1  In that respect, a theory of limitations on the amendment power is connected to a larger theory of constitutionalism and how the constitution is conceived. See Douglas Linder, ‘What in the Constitution Cannot Be Amended?’ (1981) 23 Ariz. L. Rev. 717, 718.

2  Martin Loughlin, The Idea of Public Law (Oxford University Press 2004) 100. For conceptualizations of constituent power, see generally Martin Loughlin, ‘The Concept of Constituent Power’ (2014) 13(2) Eur. J. Pol. Theory 218; Joel Colón-Ríos, ‘Five Conceptions of Constituent Power’ (2014) 130(2) L. Q. Rev. 306; Yaniv Roznai, ‘“We the People”, “Qui, the People” and the Collective Body: Perceptions of Constituent Power’ in Gary Jacobsohn and Miguel Schor (eds), Comparative Constitutional Theory (Edward Elgar, forthcoming 2017).

3  Ulrich K. Preuss, ‘The Exercise of Constituent Power in Central and Eastern Europe’ in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford University Press 2007) 211–22; Luc J. Wintgens, ‘Sovereignty and Representation’ (2001) 14(3) Ratio Juris 272, 274. The idea of a collective ‘people’ standing as a distinct force behind all constituted forms of sovereignty goes back to Hobbes. See Murray Forsyth, ‘Thomas Hobbes and the Constituent Power of the People’ (1981) 29(2) Pol. Stud. 191.

4  A 1978 survey revealed that 53.6 per cent of States’ constitutions referred explicitly to the sovereignty of the people. See Hence van Maarseveen and Ger van der Tang, Written Constitutions: A Computerized Comparative Study (BRILL 1978) 93. On how constitutions portray the people’s sovereignty, see Denis J. Galligan, ‘The Sovereignty Deficit of Modern Constitutions’ (2013) 33 Oxford J. Leg. Stud. 1.

5  See, for example, Horst Dippel, ‘The Changing Idea of Popular Sovereignty in Early American Constitutionalism: Breaking away from European Patterns’ (1996) 16(1) Journal of the Early Republic 21, 26; Claude Klein, Théorie et pratique du pouvoir constituant (constituant coll Les voies du droit Paris Presses universitaires de France 1996) 31. Daniel Lee demonstrates how the idea of the people’s constituent power stretches back many centuries before the French Revolution, appearing in medieval and early modern civilian legal thought. See Daniel Lee, Popular Sovereignty in Early Modern Constitutional Thought (Oxford University Press 2016) 318.

6  Emmanuel Joseph Sieyès, Préliminaires de la Constitution—Réconnaissance et exposition des droits de l’homme (1789) 18.

7  Emmanuel Joseph Sieyès, ‘What Is the Third Estate?’ [1789] in Political Writings (Hackett Publishing Company Inc. 2003) 136.

8  Ibid 134–7. Egon Zweig proposed that Sieyès managed to apply Montesquieu’s concept of separation of powers to Rousseau’s notion of sovereignty. See Egon Zweig, Die Lehre vom Pouvoir Constituant (Mohr Siebeck 1909) 135–7, cited in Mark Vishniak, ‘Justification of Power in Democracy’ (1945) 60(3) Pol. Sci. Q. 351, 361. On the relation between Sieyès’ constituent power and Rousseau’s social contract see Bronislaw Baczko, ‘The Social Contract of the French: Sieyès and Rousseau’ (1988) 60 J. Mod. His. S98–125.

9  Sieyès (n. 7).

10  See Thomaz Pereira, ‘Constituting the Amendment Power: A Framework for Comparative Amendment Law’ in Richard Albert, Xenophon Contiades, and Alkmene Fotiadou (eds), The Foundations and Traditions of Constitutional Amendment (Hart Publishing, forthcoming 2017).

11  According to Colón-Ríos, this distinction can be traced earlier to Hermann Kirchner, Respublica (1608). See Joel Colón-Ríos, Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power (Routledge 2012) 96, n. 12. Of course, the idea of ‘original sovereignty of the people’ has appeared even earlier, for instance, in Théodore de Bèze, Du droit des magistrats sur leurs subjets (1574), as cited in Martin Loughlin, Foundations of Public Law (Oxford University Press 2010) 65. On the history of the distinction between sovereignty and government in democratic thought, see Richard Tuck, The Sleeping Sovereign: The Invention of Modern Democracy (Cambridge University Press 2016); Lee (n. 5).

12  See Loughlin, ibid, 58, 70–2.

13  Johannes Althusius, Politicia Methodice Digesta [An abridged translation of the Third Edition, 1614] (Frederick S. Carney tr. and ed., Preface by Carl J. Friedrich, Beacon Press 1964) 73.

14  George Lawson, Politica Sacra et Civilis (Conal Condren ed., Cambridge University Press 1992) 47–8. See also Martin Loughlin, ‘Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice’ in Loughlin and Walker (n. 3) 28, 40.

15  John Locke, Two Treatises of Government [1689] (Whitmore and Fenn, and C. Brown 1821) 317.

16  Daniel Defoe, The Original Power of the Collective Body of the People of England, Examined and Asserted (1702) 12; Daniel Defoe, ‘Of The Carrying on the Treaty in Scotland’ in A Collection of Original Papers (E. Curll 1709) 1, 37.

17  Renato Cristi, ‘Schmitt on Constituent Power and the Monarchical Principle’ (2011) 18(3) Constellations 352, 358.

18  Sieyès (n. 7) 136. For Sieyès, the nation is ‘a body of associates living under a common law, represented by the same legislature, etc’: Sieyès (n. 7) 97. This definition appears to be contradictory to Sieyès’ claim that the nation is to be conceived as a ‘pre-political entity’. On this circularity problem of ‘we the people’ behind the constituent power see, for example, Zoran Oklopcic, ‘Constituent Power and Polity Legitimacy in the European Context: A Theoretical Sketch’ in Joseph Drew (ed.), Redefining Europe (Rodopi 2005) 133, 134.

19  Sieyès (n. 7) 136.

20  Sieyès (n. 7) 137.

21  Lucien Jaume, ‘Constituent Power in France: The Revolution and Its Consequences’ in Loughlin and Walker (n. 3) 67–8; Matt Whitt, The Paradox of Sovereignty: Authority, Constitution, and Political Boundaries (PhD Thesis, Vanderbilt University 2010) 159–60.

22  Giorgio Agamben, Homo Sacer—Sovereign Power and Bare Life (Stanford University Press 1998) 42. See also Rad Borislavov, ‘Agamben, Ontology, and Constituent Power’ (2005) 13(2) Debatte 173, 177.

23  Antonio Negri, Insurgencies: Constituent Power and the Modern State (University of Minnesota Press 1999) 13.

24  Loughlin (n. 2) 80–5.

25  Andreas Kalyvas, ‘Popular Sovereignty, Democracy, and the Constituent Power’ (2005) 12(1) Constellations 223, 226. See also Lee (n. 5) 5: ‘What makes the people … the bearers of sovereignty, supreme even over their constituted government, is the trump card they are always presumed to hold in reserve, and that is the extralegal capacity of the people to dissolve the constituted authority’.

26  Carl Schmitt, Constitutional Theory (Jeffrey Seitzer tr., Duke University Press 2008) 64, 76.

27  Ibid, 125.

28  Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt and Hannah Arendt (Cambridge University Press 2008) 139.

29  Schmitt (n. 26) 125–32. See also Renato Cristi, ‘Carl Schmitt on Sovereignty and Constituent Power’ (1997) 10 Can. J. L. & Jur. 189, 198.

30  William E. Scheuerman, Carl Schmitt: The End of Law (Rowman & Littlefield 1999) 71.

31  Luigi Corrias, ‘The Legal Theory of the Juridical Coup: Constituent Power Now’ (2011) 12(8) German L. J. 1558, 1559; Luigi Corrias, The Passivity of Law: Competence and Constitution in the European Court of Justice (Springer 2011) 35–6; Richard S. Kay, ‘Constituent Authority’ (2011) 59 Am. J. Comp. L. 715, 719.

32  Martin Loughlin and Neil Walker, ‘Introduction’ in Loughlin and Walker (n. 3) 1–2.

33  François Laurent, Principes de droit civil, Tome Premier (Bruylant-Christophe et Comp. 1869) 216. See also Félix Berriat Saint-Prix, Commentaire sur la Charte Constitutionnelle (Videcoq 1836) 118, 187.

34  Ulrich K. Preuss, ‘The Implications of “Eternity Clauses”: The German Experience’ (2011) 44(3) Isr. L. Rev. 429, 434.

35  Preuss (n. 3) 211, 220.

36  James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law (Little, Brown, and Company 1893) 5.

37  Schmitt (n. 26) 150; Preuss (n. 34) 430; Ulrich K. Preuss, ‘Constitutional Powermaking for the New Polity: Some Deliberations on the Relations between Constituent Power and the Constitution’ in Michel Rosenfeld (ed.), Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives (Duke University Press 1994) 143, 158.

38  Stephen Holmes and Cass R. Sunstein, ‘The Politics of Constitutional Revision in Eastern Europe’ in Sanford Levinson (ed.), Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton University Press 1995) 275, 276.

39  Sujit Choudhry, ‘Old Imperial Dilemmas and the New Nation-building: Constitutive Constitutional Politics in Multinational Polities’ (2005) 37 Conn. L. Rev. 933, 939.

40  Beau Breslin, From Words to Worlds—Exploring Constitutional Functionality (John Hopkins University Press 2009) 106.

41  Recall that Lawson (n. 14) 47–8 considered ‘real Majesty’ to be the power ‘to constitute, abolish, alter, reform forms of government’.

42  Laurence H. Tribe and Thomas K. Landry, ‘Reflection on Constitution-making’ (1993) 8 Am. U. J. Int’l L. & Pol’y 627, 631.

43  Stephen M. Griffin, ‘Constituent Power and Constitutional Change in American Constitutionalism’ in Loughlin and Walker (n. 3) 49, 50, 66; Edward S. Corwin and Mary Louise Ramsey, ‘The Constitutional Law of Constitutional Amendment’ (1950–1) 26 Notre Dame L. Rev. 185, 188. In Hollingsworth v. Virginia, 3 U.S. (378 Dall.) (1798), the U.S. Supreme Court seemed to hold the view that the amending power is an expression of the people’s constituent power and thus is unlimited, contra to ordinary legislative powers.

44  Gordon S. Wood, The Creation of the American Republic 1776–1787 (1969) 614. See also Robert Roswell Palmer, The Age of the Democratic Revolution: The Challenge (Princeton University Press 1959) 215; Westel Woodbury Willoughby, An Examination of the Nature of the State—A Study in Political Philosophy [1896] 219 (BiblioBazaar, LLC 2009).

45  This book generally rejects this argument. As argued in this book, as a delegated power, the amendment power cannot change its own terms of delegation. See Sieyès (n. 7) 136.

46  Preuss (n. 34) 436.

47  Negri (n. 23) 2, 216.

48  Markku Suksi, Making a Constitution: The Outline of an Argument (Rättsvetenskapliga Institutionen 1995) 5, 10–11.

49  Rene Barents, The Autonomy of Community Law (Kluwer Law International 2004) 91.

50  Preuss (n. 34) 430.

51  Asem Khalil, The Enactment of Constituent Power in the Arab World: The Palestinian Case (Institut du Fédéralisme Fribourg Suisse 2006) 25.

52  Grégoire C. N. Webber, The Negotiable Constitution—On the Limitation of Rights (Cambridge University Press 2009) 49.

53  A. V. Dicey, ‘Constitutional Revision’ (1895) 11 L. Q. Rev. 387, 388.

54  Max Radin, ‘The Intermittent Sovereign’ (1929–30) 39 Yale L. J. 514, 525–6.

55  Georges Burdeau, Droit constitutionnel et institutions politiques (15e éd., Paris, 1972) 78–94; Georges Burdeau, Francis Hamon, and Michel Troper, Droit constitutionnel (21e éd., Paris, 1988) 76–84.

56  Sieyès (n. 7) 136.

57  French Constitution of 1791, Tit. VII. This near unamendability was severely criticized by Jeremy Bentham, who believed that the supreme legislature must continuously remain free to legislate in any way that it deemed suitable and rejected the Assembly’s notion of infallibility, arguing that there is often a need to correct flaws in the Constitution revealed by time, practice, and experience. See Jeremy Bentham, ‘Necessity of an Omnipotent Legislature’ in Philip R. Schofield, Catherine Pease-Watkin, and Cyprian Blamires (eds), Rights, Representation, and Reform: Nonsense upon Stilts and Other Writings on the French Revolution (Oxford University Press 2002) 255–6; Melissa Schwartzberg, ‘Jeremy Bentham on Fallibility and Infallibility’ (2007) 68(4) Journal of the History of Ideas 563, 576–9.

58  Arnaud Le Pillouer, ‘Pouvoir constituant originaire et pouvoir constituant dérivé: à propos de l’émergence d’une distinction conceptuelle’ (2005–6) 25–6 Revue d’histoire des facultés de droit et de la science juridique 123. For full details of Frochot’s proposal, see Eric Thompson, Popular Sovereignty and the French Constituent Assembly, 1789–91 (Manchester University Press 1952) 112, 158–61. More on the importance of these debates to the theory of constitutional amendment, see Mark Tushnet, ‘Amendment Theory’ in Gary Jacobsohn and Miguel Schor (eds), Comparative Constitutional Theory (Edward Elgar, forthcoming 2017).

59  Frank Maloy Anderson, The Constitutions and Other Select Documents Illustrative of the History of France, 1789–1907 (Wilson 1908) 94–5.

60  Arnaud Le Pillouer, ‘De la révision à l’abrogation de la constitution: les termes du débat’ (2009) 3 Jus Politicum 6–8, <http://www.juspoliticum.com/IMG/pdf/JP3_lepillouer.pdf>

61  Julien Oudot, Conscience et science du devoir: introduction à une explication nouvelle du Code Napoléon, Tome Second (A. Durand 1856) 398–9.

62  Claude Klein, ‘The Constituent Power in the State of Israel’ (1970–1) 2 Mishpatim 51–2 [Heb.]; Claude Klein, ‘After the Mizrahi Bank Case—The Constituent Power as Seen by the Supreme Court’ (1997) 28 Mishpatim 341, 356 [Heb.]. For a similar distinction, see briefly Riccardo Guastini, ‘On the Theory of Legal Sources’ (2007) 20(2) Ratio Juris 302, 307–8.

63  Markku Suksi, Bringing in the People: A Comparison of Constitutional Forms and Practices of the Referendum (Martinus Nijhoff Publishers 1993) 25–6.

64  Kemal Gözler, Le pouvoir de révision constitutionnelle (Thèse, Université Montesquieu–Bordeaux IV, 1995) 12–32; Kemal Gözler, Pouvoir constituant (Ekin Press 1999) 10–28.

65  Raymond Carré de Malberg, Contribution à la théodrie générale de l’etat (2 tomes, 1922, réimpression par CNRS 1962) 489–500; Georges Burdeau, Essai d’une théorie de la révision des lois constitutionnelles en droit français (Thèse, Faculté de droit de Paris 1930) 78–83; Roger Bonnard, ‘Les actes constitutionnels de 1940’ (1942) Revue du droit public 46, 48–59; Guy Héraud, L’ordre juridique et le pouvoir originaire (Sirey 1946) 2–4; Georges Vedel, Droit constitutionnel (1949, réimpression Sirey 1989) 115–16.

66  Gözler, Pouvoir Constituant (n. 64) 39–44. See, similarly, Hugh Evander Willis, ‘The Doctrine of the Amendability of the United States Constitution’ (1932) 7(8) Indiana L. Rev. 457, 468. But see contra William T. Han, ‘Chain Novels and Amendments Outside Article V: A Literary Solution to a Constitutional Conundrum’ (2010) 33 Hamline L. Rev. 71 (claiming that the people retain an extralegal right to abolish their government, but for purposes of amendments, Article V is exclusive).

67  Hans Kelsen, What Is Justice (University of California Press 1957) 261–3; Hans Kelsen, Pure Theory of Law (Max Knight tr., University of California Press 1967) 201–3; Hans Kelsen, ‘The Function of a Constitution’ in Richard Tur and William L. Twining (eds), Essays on Kelsen (Clarendon Press 1986) 110. See, generally, Joseph Raz, ‘Kelsen’s Theory of the Basic Norm’ in Stanley L. Paulson and Bonnie Litschewski Paulson (eds), Normativity and Norms: Critical Perspectives on Kelsenian Themes (Oxford University Press 1998) 47; Graham Hughes, ‘Validity and the Basic Norm’ (1971) 59 Cal. L. Rev. 695.

68  Carl Joachim Friedrich, Constitutional Government and Politics—Nature and Development (Harper & Brothers Publishers 1937) 117.

69  Schmitt (n. 26) 76–7.

70  Ibid, 150.

71  Ibid, 150–2.

72  Olivier Beaud, La puissance de l’état (PUF 1994) 315–19, 336–7, 439. On Beaud’s theory, see Kemal Gözler, ‘La théorie d’Olivier Beaud’ (1997) 46(1–4) Ankara Üniversitesi Hukuk Fakültesi Dergisi 129.

73  Gözler, Pouvoir Constituant (n. 64) 28–30.

74  Alf Ross, ‘Delegation of Power: Meaning and Validity of the Maxim delegata potestas non potest delegari’ (1958) 7(1) Am. J. Comp. L. 1, 14.

75  Thomas E. Baker, ‘Towards a More Perfect Union: Some Thoughts on Amending the Constitution’ (2000) 10(1) Widener J. Pub. L. 1, 5. See also Tushnet (n. 58): ‘Amendments addressing perceived imperfections are exercises of the constituent power, by institutions to which the constituent power has delegated some of its authority. The constitution then sets out procedures that must be followed for an amendment proposed pursuant to that delegation to become legally effective.’

76  Carlos Bernal, ‘Unconstitutional Constitutional Amendments in the Case Study of Colombia: An Analysis of the Justification and Meaning of the Constitutional Replacement Doctrine’ (2013) 11 Int’l J. Const. L. 339, 343.

77  Ibid, 339, 349.

78  Arthur Lupia, ‘Delegation of Power: Agency Theory’ in Neil J. Smelser and Paul B. Baltes (eds), 5 International Encyclopedia of the Social and Behavioral Sciences (Elsevier Science Limited 2001) 3375–7.

79  Carlos E. González, ‘Popular Sovereign versus Government Institution Generated Constitutional Norms: When does a Constitutional Amendment Not Amend the Constitution?’ (2002) 80 Wash. U. L. Q. 127, 194–219; Kumarjit Banerjee and Bulbul Khaitan, ‘Resolving the “Paradox of Constituent Power and Constitutional Form” from a Schmittian Account of Sovereignty: Its Relevance to the Understanding of “Constituent Power” and “Amending Power”’ (2008) 1 NUJS L. Rev. 547, 555–6.

80  Thomas Paine, Rights of Man, Common Sense and Other Political Writings (Oxford University Press 2008) 238. See also Robert James Turnbull, Brutus (pseud.) The Crisis: or, Essays on the Usurpations of the Federal Government (Printed by A. E. Miller 1827) 104.

81  Ulrich K. Preuss, ‘Constitutional Powermaking for the New Polity: Some Deliberations on the Relations between Constituent Power and the Constitution’ (1992–3) 14 Cardozo L. Rev. 639, 653; compare Damian Chalmers, Constituent Power and the Pluralist Ethic in Loughlin and Walker (n. 3) 291, 295: ‘Constituent power enables lawmaking and ordinary politics to be conceived of in terms of agency.’

82  Cf. Samuel Freeman, ‘Constitutional Democracy and the Legitimacy of Judicial Review’ (1990–1) 9(4) Law and Philosophy 327, 348–9. This idea goes back to Locke (n. 15) paras 149, 367 and Edmund Burke, Speech on Fox’s East India Bill (1783), reprinted in Edmund Burke, On Empire, Liberty, and Reform: Speeches and Letters 286–370 (David Bromwich ed., 2000) 291. See Jedediah Purdy and Kimberly Fielding, ‘Sovereigns, Trustees, Guardians: Private-law Concepts and the Legitimate State Power’ (2007) 70 Law & Contemp. Probs. 165, 185–6.

83  See Akhil Reed Amar, ‘Philadelphia Revisited: Amending the Constitution outside Article V’ (1988) U. Chi. L. Rev. 55, 1043, 1054–8; Akhil Reed Amar, ‘The Consent of the Governed: Constitutional Amendment outside Article V’ (1994) Colum. L. Rev. 94, 457, 458–500; Akhil Reed Amar, ‘Popular Sovereignty and Constitutional Amendment’ in Levinson (n. 38) 89, 90–101.

84  William F. Harris II, The Interpretable Constitution (Johns Hopkins University Press 1993) 193. See also at 167: ‘the attempt to incorporate a full-scale amending power within the document may subject the integrity of the whole design to the unrestrained will of those who hold power in trust for the sovereign people.’

85  Stephen A. Scott, ‘Constituent Authority and the Canadian Provinces’ (1966–7) 12 McGill L. J. 528, 555.

86  C. V. Keshavamurthy, Amending Power under the Indian Constitution—Basic Structure Limitations (Deep & Deep Publications 1982) 13, 50. See also Jeffrey A. Lenowitz, Why Ratification? Questioning the Unexamined Constitution-making Procedure (PhD Thesis, Columbia University 2013) 87. Interestingly, it is precisely the idea of ‘non-transferability of sovereignty’ which stands behind the modern constitutional ‘non-delegation’ doctrine of legislation. See Ross (n. 74) 11 fn. 27.

87  Michel Troper, ‘Constitutional Law’ in George A. Bermann and Étienne Picard (eds), Introduction to French Law (Kluwer Law International 2008) 1, 11.

88  Claude Klein and András Sajó, ‘Constitution-making: Process and Substance’ in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press 2012) 419, 422, n. 14.

89  Jan-Herman Reestman, ‘The Franco–German Constitutional Divide—Reflection on National and Constitutional Identity’ (2009) 5(3) Eur. Const. L. Rev. 374, 385.

90  See Gözler, Pouvoir constituant (n. 64) 7–8.

91  Holmes and Sunstein (n. 38) 276.

92  Ramaswamy R. Iyer, ‘Some Constitutional Dilemmas’ (2006) 41(21) Economic and Political Weekly 2064, 2065.

93  Lior Barshack, ‘Constituent Power as Body: Outline of a Constitutional Theology’ (2006) 56 University of Toronto L. J. 185, 199 (noting that ‘A moment of foundation cannot … be a moment of sheer, stagnant presence, ignorant of past and future’); Kim Lane Scheppele, ‘A Constitution between Past and Future’ (2008) 49(4) William and Mary L. Rev. 1377, 1379.

94  Palmer (n. 44) 215–16. See also Hans Lindahl, ‘Constituent Power and Reflexive Identity: Toward an Ontology of Collective Selfhood’ in Loughlin and Walker (n. 3) 9, 21; Mark Tushnet, ‘Constitution-making: An Introduction’ (2012–13) 91 Tex. L. Rev. 1983, 1990.

95  See, for example, Andrew Arato, Constitution-making under Occupation: The Politics of Imposed Revolution in Iraq (Columbia University Press 2009); Chaihark Hahm and Sung Ho Kim, Making We The People—Democratic Constitutional Founding in Postwar Japan and South Korea (Cambridge University Press 2015).

96  Karol Edward Soltan, ‘Constitution Making at the Edges of Constitutional Order’ (2007–8) 49 William and Mary L. Rev. 1409, 1414–19; Andrew Arato, ‘Conventions, Constituent Assemblies, and Round Tables: Models, Principles and Elements of Democratic Constitution-making’ (2012) 1(1) Glob. Const. 173, 174; Henk Botha, ‘Instituting Public Freedom or Extinguishing Constituent Power? Reflections on South Africa’s Constitution-making Experiment’ (2010) 26 S. Afr. J. on Hum. Rts. 66.

97  Loughlin, ‘The Concept of Constituent Power’ (n. 2) 231–2, argues that due to the relational nature of the constituent power, according to which ‘constituent power is not engaged only at the (virtual) founding moment but continues to function within an established regime as an expression of the open, provisional and dynamic aspects of constitutional ordering’, the distinction between original and derived constituent power is flawed. In contrast, it is argued here that it is this relational account that explains why the amending power is still a type of constituent power (though secondary). Even Loughlin acknowledges there that the symbolic act of ‘we the people’ ‘cannot exist only in the realm of belief; it must also take effect in reality, and this will often involve the use of force’. Therefore, it is often the direct action by ‘the people’ themselves which brings about a constitutional transformation in key ‘constitutional moments’. Once one accepts the distinction between ‘the people’ and ‘the government’ then the distinction between ‘original’ and ‘derived’ constituent powers is a logical consequence.

98  Wang Liangliang, ‘Limits on the Power to Revise A Constitution’ in Mo Jihong (ed.), Study on the Worldwide Constitutional Laws (China Branch, International Association of Constitutional Law 2007) 38, 41.

99  Alf Ross, Directives and Norms (Routledge & K. Paul 1968) 130. But see Alexander Somek, Individualism—An Essay on the Authority of the European Union (Oxford University Press 2008) 17 fn. 3 (legal power and competence are not identical since while legal power is ‘the ability to lay down a rule’, legal competence often extends to the permission to act in a certain way without the ability to lay down rules).

100  Cf. Eugenio Bulygin, ‘On Norms of Competence’ (1992) 11(3) L. & Phil. 201, 203; Ulises Schmill, ‘The Dynamic Order of Norms, Empowerment and Related Concepts’ (2000) 19(2) L. & Phil. 283, 286, 294.

101  Richard M. Emerson, ‘Power-dependence Relations’ (1962) 27(1) Am. Sociological Rev. 31, 38; Norman Uphoff, ‘Distinguishing Power, Authority & Legitimacy: Taking Max Weber at His Word by Using Resources-exchange Analysis’ (1989) 22(2) Polity 295, 302–3.

102  Hannah Arendt, ‘What Is Authority’ in Hannah Arendt, Between Past and Future—Six Exercises in Political Thought (Faber and Faber 1961) 91, 122.

103  Richard D. Parker, “‘Here, the People Rule”: A Constitutional Populist Manifesto’ (1993) 27 Val. U. L. Rev. 531, 583.

104  Compare with Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (Oxford University Press 2006) 177 (claiming that Art. V places ‘limits on the agents of the people rather than on the general citizenry itself’).

105  Friedrich (n. 68) 117.

106  Negri (n. 23) 3, 10, 14–16, 333.

107  Hannah Arendt, On Revolution (Penguin 1965) 163. See also William E. Scheuerman, ‘Constitutionalism in an Age of Speed’ (2002) 19 Const. Comment. 353, 383.

108  William E. Scheuerman, ‘Revolutions and Constitutions: Hannah Arendt’s Challenge to Carl Schmitt’ (1997) 10 Can. J. L. & Jur. 141, 151.

109  Renato Cristi, ‘The Metaphysics of Constituent Power: Schmitt and the Genesis of Chile’s 1980 Constitution’ (1999–2000) 21 Cardozo L. Rev. 1749, 1763–75; William Partlett, ‘The Dangers of Popular Constitution-making’ (2012) 38 Brook J. Int’l L. 1, 42; David Landau, ‘Constitution-making Gone Wrong’ (2013) 64(5) Alabama L. Rev. 923.

110  David Dyzenhaus, ‘The Question of Constituent Power’ in Loughlin and Walker (n. 3) 129, 143–5; David Dyzenhaus, ‘Constitutionalism in an Old Key: Legality and Constituent Power’ (2012) 1(2) Glob. Cons. 229.

111  Loughlin, ‘The Concept of Constituent Power’ (n. 2) 223.

112  János Kis, Constitutional Democracy (Central European University Press 2003) 136–7.

113  Alexander Somek, ‘Constituent Power in National and Transnational Contexts’ (2012) 3(1) Transnational Legal Theory 31, 34.

114  Negri (n. 23) 1. See also Ernst-Wolfgang Böckenförde, ‘Die verfassungsggebende Gewalt des Volkes-Ein Grenzbegriff des Verfassungsrechts’ in Staat, Verfassung, Democratie (Suhrkamp 1991) 90–112; Illan Rua Wall, Human Rights and Constituent Power—Without Model or Warranty (Routledge 2012) 6; Colón-Ríos (n. 11) 110, 122.

115  James Wilson and Thomas McKean, Commentaries on the Constitution of the United States of America (J. Debrett; J. Johnson; and J. S. Jordan 1792) 38–9. On the right of ‘the People’ ‘to alter or to abolish’ their form of government, as stated in the U.S. Declaration of Independence, see Jack M. Balkin and Sanford Levinson, ‘To Alter or Abolish’ (2016) 89 South. Cal. L. Rev. 399.

116  See n. 83. For a counter-argument, see John R. Vile, ‘Legally Amending the United States Constitution: The Exclusivity of Article V’s Mechanisms’ (1991) 21 Cumb. L. Rev. 271.

117  See, for example, Richard S. Kay, ‘The Illegality of the Constitution’ (1987) 4 Const. Comment. 57; Bruce Ackerman and Neal Katyal, ‘Our Unconventional Founding’ (1995) 62 U. Chi. L. Rev. 475; Jason Frank, ‘“Unauthorized Propositions”: The Federalist Papers and Constituent Power’ (2007) 37(2–3) Diacritics 103.

118  Vicki Jackson, ‘Unconstitutional Constitutional Amendments: A Window into Constitutional Theory and Transnational Constitutionalism’ in Geburtstag Astrid Wallrabenstein, Philipp Dann, and Michael Bäuerle (eds), Demokratie-Perspektiven Festschrift für Brun-Otto Bryde zum 70 (Mohr Siebeck 2013) 47. See also Harris (n. 84) (who also notes that ‘the very plenipotentiary scope of the people as the normative constitutional author provides the limits on the normal amending apparatus’).

119  ADIN nº 815-3/DF, DJU de 10/05/96, p. 15131, cited in Adriana Zawada Melo, ‘A limitação material do poder constituinte derivado’ (2008) 8(1) Revista Mestrado em Direito 31, 48.

120  Supreme Court of Justice of Venezuela (Constitutional Chamber), Opinion No. 53 (3 February 2009); Opinion No. 17 of the Supreme Court of Justice of Venezuela (19 January 1999). See Joel Colón-Ríos, ‘Carl Schmitt and Constituent Power in Latin American Courts: The Cases of Venezuela and Colombia’ (2011) 18(3) Constellations 365, 369–72.

121  Schmitt (n. 26) 140.

122  Ibid, 131.

123  Andrew Arato, ‘Carl Schmitt and the Revival of the Doctrine of the Constituent Power in the United States’ (1999–2000) 21 Cardozo L. Rev. 1739, 1746–7; Andreas Kalyvas, ‘Carl Schmitt and the Three Moments of Democracy’ (1999–2000) 21 Cardozo L. Rev., 1525, 1540 fn. 61. For a summary of Ackerman and Amar’s theories and their critics see James W. Torke, ‘Assessing the Ackerman and Amar Theses: Notes on Extratextual Constitutional Change’ (1994–5) 4 Widener J. Pub. L. 229.

124  Bruce Ackerman, We the People: Foundations (Harvard University Press 1991) 195, 285. See also Bruce Ackerman, ‘Constitutional Politics/Constitutional Law’ (1989) 99 Yale L. J. 453; Bruce Ackerman, ‘The Storrs Lectures: Discovering the Constitution’ (1984) 93 Yale L. J. 1013; Bruce Ackerman, ‘The Lost Opportunity?’ (1990) 10 Tel Aviv U. Stud. L. 53; Bruce Ackerman, ‘Higher Lawmaking’ in Levinson (n. 38) 63.

125  See, for example, Sharon Weintal, ‘The Challenge of Reconciling Constitutional Eternity Clauses with Popular Sovereignty: Toward Three-track Democracy in Israel as a Universal Holistic Constitutional System and Theory’ (2011) 44(3) Isr. L. Rev., 449; Sharon Weintal, ‘The Inherent Authority of Judges in a Three-track Democracy to Recognise Unenumerated Constitutional Rights: The Israeli Story of a Judicial Mission with No Ammunition’ in Gideon Sapir, Daphne Barak-Erez, and Aharon Barak (eds), Israeli Constitutional Law in the Making (Hart Publishing 2013) 285, 288–92.

126  Cheryl Saunders, ‘The Constitutional Credentials of State Constitutions’ (2011) 42 Rutgers L. J. 853, 870.

127  Upendra Baxi, ‘Some Reflections on the Nature of Constituent Power’ in Rajeev Dhavan and Alice Jacov (eds), Indian Constitution—Trends and Issues (N.M. Tripathi Private Ltd. 1978) 122, 136.

128  In the acts of the reunification of 23.09.1990, Art. 146 was amended as follows: ‘after the union and freedom of Germany have been finalized this constitution shall be valid for all the German people and will continue to be valid until the day when a new constitution is accepted by the free will of the German people.’ In other words, even at the moment of unification, Art. 146 was not invoked and instead, the Basic Law was amended and kept in place.

129  Ali Riza Çoban, ‘The Continuity Problem of the Constituent Power’ in Arno Scherzberg, Osman Can, and Ilyas Doğan (eds), Verfassungstheorie und Verfassungsgebung: Überlegungen anlässlich der Diskussion um eine Verfassungsreform in der Türkei (LIT Verlag2012) 49, 58.

130  For a debate, see Kay (n. 31) 727; Christoph Möllers, ‘“We are (afraid of) the people”: Constituent Power in German Constitutionalism’ in Loughlin and Walker (n. 3) 87, 97–8; Markus Böckenförde, ‘Constitutional Referendum in Germany—Country Report’ in Eibe H. Riedel and Rüdiger Wolfrum (eds), Recent Trends in German and European Constitutional Law: German Reports Presented to the XVIIth International Congress on Comparative Law, Utrecht, 16 to 22 July 2006 (Springer 2010) 107, 120; Peter E. Quint, The Imperfect Union: Constitutional Structures of German Unification (Princeton University Press 1997) 49.

131  The Lisbon Case, BVerfg, 2 be/08 of 30 June 2009, para. 217, <http://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208en.html>; See Daniel Halberstam and Christoph Möllers, ‘The German Constitutional Court says Ja Zu Deutschland’ (2009) 10 German L. J. 1241, 1256.

132  Jo Eric Khushal Murkens, From Empire to Union: Conceptions of German Constitutional Law since 1871 (Oxford University Press 2013) 175. See also Çoban (n. 129) 59; Preuss (n. 34) 440, 443; Helmut Goerlich, ‘Concept of Special Protection for Certain Elements and Principles of the Constitution against Amendments and Article 79(3), Basic Law of Germany’ (2008) 1 NUJS L. Rev. 397, 404.

133  Adriano Sant’Ana Pedra, ‘Un análisis sobre la intangibilidad de las cláusulas pétreas’ (2010) 22(II) Derechos y libertades 241.

134  See, for example, Jorge Reinalso and A. Vanossi, Teoria Constitutional (2nd edn, Depalma 2000) 188. See also Carl J. Friedrich, Constitutional Government and Democracy—Theory and Practice in Europe and America (4th edn, Blaisdell Pub. Co. 1968) 138, 143–6; Richard Albert, ‘Constitutional Handcuffs’ (2010) 42 Arizona State L. J. 684–5.

135  Jon Elster, Ulysses Unbound—Studies in Rationality, Precommitment, and Constraints (Cambridge University Press 2000) 96.

136  See Andrew Friedman, ‘Dead Hand Constitutionalism: The Danger of Eternity Clauses in New Democracies’ (2011) 4 Mex. L. Rev. 77, 93–6.

137  Linder (n. 1) 723.

138  Tushnet (n. 94) 2007 fn. 94.

139  Mark Tushnet, ‘Peasants with Pitchforks, and Toilers with Twitter: Constitutional Revolutions and the Constituent Power’ (2015) 13(3) Int’l J. Const. L. 639, 642–3.

140  By focusing on substance rather than procedure, Gary Jacobsohn’s conceptualization of constitutional revolutions is accepted. See Gary J. Jacobsohn, ‘Theorizing the Constitutional Revolution’ (2014) Journal of Law and Courts 1, 3, according to which the presence of constitutional revolution is indicated by a ‘paradigmatic displacement, however achieved, in the conceptual prism through which constitutionalism is experienced in a given polity’. See also Gary J. Jacobsohn, ‘Making Sense of the Constitutional Revolution’ (2012) 19(2) Constellations 164.

141  Tushnet (n. 139) 647. Compare with Joel Colón-Ríos, ‘Introduction: The Forms and Limits of Constitutional Amendments’ (2015) 13(3) Int’l J. Const. L. 567, 572 (noting that ‘Tushnet is certainly right that if a revolutionary transformation of the constitutional order is successful, then an extra-legal constitution-making power has been exercised’, but emphasizing that this approach ‘carries a significant risk. If the definitive criterion for determining whether the originary constituent power has been exercised is the success of a constitutional revolution, the concept of constituent power is devoid of its democratic component.’)

142  Initial thoughts of the author appear in Roznai (n. 2).

143  A. Lawrence Lowell, Greater European Governments (Harvard University Press 1918) 103.

144  Benjamin Akzin, ‘The Place of the Constitution in the Modern State’ (1967) 2(1) Isr. L. Rev. 1, 12.

145  Yaniv Roznai and Silvia Suteu, ‘The Eternal Territory? The Crimean Crisis and Ukraine’s Territorial Integrity as an Unamendable Constitutional Principle’ (2015) 16(3) German L. J. 542.

146  Benjamin Akzin, ‘On the Stability and Reality of Constitutions’ (1956) 3 Scripta Hierosolymitana 313, 332. See also Zweig (n. 8) 324; Vile (n. 116) 295.

147  Arendt (n. 107) 142.

148  Santiago Roel, ‘History of Mexican Constitutional Experience: From Zitacuaro, 1811, to Queretaro, 1917’ (1968) 4(2) Cal. W. L. Rev. 251, 256–9; Bernard Moses, ‘Constitution of the United States of Mexico: Antecedents’ (1891) 2 Ann. Am. Acad. Pol. & Soc. Sci. 1, 4.

149  Epaminondas Spiliotopoulos, ‘Judicial Review of Legislative Acts in Greece’ (1983) 56 Temp. L. Q. 463, 466–7.

150  Walter F. Murphy, ‘Staggering toward the New Jerusalem of Constitutional Theory: A Response to Ralph F. Gaebler’ (1992) 37 Am. J. Juris. 337, 348. See also Victor M. Muñiz-Fraticelli, ‘The Problem of a Perpetual Constitution’ in A. Gosseries and L. Meyer (eds), Intergenerational Justice (Oxford University Press 2009) 379–80. I am aware, of course, of the connection between the two and that sometimes, the factual attains its own normative value (‘might has a tendency to make right’). On the normative power of the factual or ‘die normative kraft des faktischen’, see Georg Jellinek, Allgemeine Staatslehre (3rd edn, Springer 1922) 337–44.

151  Konstantinos Pilpilidis, ‘A Constitution for Eternity: An Economic Theory of Explicit Unamendability’ in Richard Albert and Bertil Emrah Oder (eds), An Unconstitutional Constitution? Unamendability in Constitutional Democracies (Springer, forthcoming 2017).

152  Luciano Maia, ‘The Creation and Amending Process in the Brazilian Constitution’ in Mads Andenas (ed.), The Creation and Amendment of Constitutional Norms (BIICL 2000) 54, 60.

153  Karl Loewenstein, ‘Constitutions, Constitutional Law’ in C.D. Kenig (ed.), Marxism, Communism, and Western Society: A Comparative Encyclopedia (Herder and Herder 1972) 169, 180–1.

154  Gregory H. Fox and Georg Nolte, ‘Intolerant Democracies’ (1995) 36 Harv. Int’l L. J. 1, 19.

155  Tushnet (n. 58).

156  Ackerman, We the People: Foundations (n. 124) 20–1.

157  See Georges Frédéric Schützenberger, Les lois de l’ordre social, Tome Second (Joubert 1850) 19 (noting that often, the special functions of the constituent power are exercised by the legislature. This is, for him, the consequence of an imperfect separation of powers between the constituent and legislative powers).

158  Harris (n. 84) 198.