CONSTITUTING THE DEMOS: CONSTITUTIONALISM, CONSTITUENT POWER, AND THE ARTICULATION OF DEMOCRATIC BOUNDARIES

Abstract

This dissertation develops a critique of the theory of “constituent power” and of its incorporation into our understanding of constitutional democracy. The theory of constituent power argues that, in a democracy, the people always retain the power to alter or replace their constitutional regime regardless of the constitution’s amendment procedures. Because of its democratic appeal, this theory has been adopted by constitutional scholars and adjudicators interested in reinforcing the link between constitutionalism and popular sovereignty. Through a case-study of revolutionary constitution-making in Venezuela, however, this dissertation looks at the more troubling implication of attributing to “the people” a constituent power that exists beyond the reach of constitutional norms. In dialogue with theorists writing on the relationship between law and democracy, it argues that any allegedly “popular” exercise of extraconstitutional lawmaking requires the intervention of a self-authorized “representative” with the power to arbitrarily decide whether (and in what sense) “the people” have spoken. It is through this power-grounded, heteronomous intervention—which allows us to definitely ascertain who gets to participate (and how) in the process of constituent will-formation—that the people are then constituted as a constitution-authorizing unity. In contrast to this “constituent” mode of democracy, the dissertation proposes a view of constitutionalism as rendering “the people” independent from ad-hoc mediation by those in power. By projecting into the future a set of stable and legible norms of democratic belonging and participation, constitutional democracy transforms the demos into a “substantiated” agent whose participants can know themselves such (and know their mode of participation) prior to the act of identification of the popular will. The dissertation then studies how this unique democratic function (along with the very integrity of the constitutional framework) can be fundamentally undermined whenever the theory of constituent power is turned into a principle of constitutional design and interpretation. It concludes by proposing the constitutional codification of participatory reform clauses as a way of preempting the recourse to constituent extraconstitutionality during times of constitutional upheaval.