The beast of constituent power

Abstract

The notion of constituent power haunts constitutional thought, but it is widely misunderstood. As this article helps us see, constituent power is wrongly thought of as an exercise of unlimited self-direction. Rather, reasonable self-direction is inherently subject to limits and the central question concerns the nature of such limits. Being subject to requirements of justice does not make us less autonomous as individuals, nor does it make a political community less sovereign. A sound exercise of my autonomy may involve binding myself, and so losing some of my freedom; constituent power may be no different, provided constraints are not unreasonable or unreasonably long. Popular sovereignty bounded by appropriate constitutional rules is not 'weak' as opposed to 'strong'.