Constituent Power and National Identity

Can constitutions make space for revolutions? The concept of constituent power represents the understanding that in constitutional democracies, “the people“ are the source of power. In liberal constitutional theory, constituent power is subsumed and exhausted by the act of foundation. Other perspectives recognize the presence of constituent power post establishment and focus on its conflictual character. In this paper, I bring Arendt as an interlocutor in these debates. I argue that Arendt‘s writings on power and constitutions suggest that constituent power is generated out of concrete political practices and is not foreclosed by establishment. Further, I look at the gaps and crevices of such an understanding and argue that the resulting perspective is provocative enough for those interested in the value of constitutional orders for revolutionary politics.

This paper presents an alternative to the constituent power theory (CPT), which it terms as a theory of elite democratic bargaining (TEDB). According to TEDB, constitution-making and reform must be based on a bargain between different elite groups in society – controversially not excluding discredited, displaced, or authoritarian elite groups. Using TEDB instead of CPT as a baseline to assess the legitimacy and legality of constitution-making and reform can serve as a better framework for all seasons and aligns with the practical realities of modern constitution-making and reform, which depend predominantly on elite negotiations. Though TEDB can make constitutional changes arduous and moderated, and by its heightened focus on elites, poses tough philosophical questions, this paper will argue how the net benefits of TEDB in building a stable democratic society might warrant its consideration as a viable alternative to CPT.

The doctrine of the substitution of the Constitution in Colombia refers to the fact that the Constitutional Court can declare a constitutional reform unconstitutional, without the 1991 Constitution containing any axial eternity clauses. This doctrine originates in decision C-551 of 2003, where the Constitutional Court stated that the power of reform cannot go beyond its powers and change, repeal or replace one Constitution with another. In this first decision, the Court established that the constitutionality parameter to establish when a constitutional reform replaces the Constitution are: (i) the principles and values

This paper examines the relationship between nationalism and constitutions, the role of a constitution in the imagination of the 'people' and their national identity, especially in post-colonial contexts. It argues that the ‘people‘ viewed as citizens are a distinct conceptual category embodied and in many ways created by the constitution, a product of ideological nationalist contestations at the constitutive moment, and the 'people' at various moments in their political histories have a collective national identity drawn from and in part defined by the constitution. It argues that looking to the founding narrative and constitutions for a sense of national identity can provide for a thicker account of constitutional patriotism that is compatible with democratic constitutionalism. It allows for an inclusive national belonging that can serve as a counter to ethno-nationalist forces and promote democratic resilience, especially in countries with higher levels of constitutional faith.