Every constitution faces an uncomfortable question it cannot answer on its own terms: where did this document get the authority to bind us? The constitution establishes courts, legislatures, and executives. It defines their powers and limits. But what established the constitution itself? This is not merely an academic puzzle. It touches the deepest foundations of legal and political authority.

The concept that addresses this question is constituent power—the pouvoir constituant in the French tradition. It names the authority to create, abolish, or fundamentally transform a constitutional order. This power stands logically prior to the constitution and remains conceptually distinct from the powers the constitution creates. Understanding it requires grappling with paradox, historical contingency, and the limits of legal reasoning.

Constitutional lawyers and theorists often work comfortably within established frameworks. We interpret texts, balance rights, and apply precedent. But constituent power forces us to confront what lies beneath and beyond these frameworks. It asks us to think about the circumstances under which the entire constitutional order might be legitimately remade—and who possesses the authority to do so. These questions have never been merely theoretical. They animate revolutionary moments and constitutional crises. They shape how we understand democratic self-governance at its most fundamental level.

The modern concept of constituent power crystallized during the French Revolution, particularly in the writings of Emmanuel Joseph Sieyès. His 1789 pamphlet What Is the Third Estate? articulated a distinction that would reshape constitutional thought. Sieyès separated the pouvoir constituant—the nation's power to give itself a constitution—from the pouvoirs constitués, the ordinary powers of government that the constitution creates and regulates.

For Sieyès, the nation possesses an unlimited, legally unbounded power to determine its constitutional form. This power cannot be constrained by any prior legal arrangement because it is the source of all such arrangements. The nation exists prior to any constitution and retains the permanent capacity to reconstitute itself. Constitutional provisions that purport to make themselves unamendable, or that entrench particular arrangements permanently, cannot bind the constituent power. They are, at most, binding on the constituted authorities.

Carl Schmitt developed this concept in a more troubling direction during the Weimar period. Schmitt insisted that constituent power is essentially a matter of existential political decision. The sovereign who decides on the exception—who determines when normal constitutional rules are suspended—exercises something like constituent power. For Schmitt, every constitution rests ultimately on a political decision about the form and nature of political existence, a decision that cannot be derived from legal norms.

Contemporary theorists have sought to rescue constituent power from its Schmittian associations while retaining its analytical force. Scholars like Andreas Kalyvas emphasize the democratic and deliberative potential of constituent moments. Others, like Martin Loughlin, treat constituent power as the fundamental generative principle of public law—neither purely legal nor purely political, but the hinge between the two realms.

The concept matters because it illuminates something that purely legal analysis cannot capture. Constitutional authority cannot be fully grounded in constitutional text or constitutional procedures. Something must exist prior to and outside the constitutional frame to give that frame its authority. Constituent power names this something, even if it cannot fully domesticate it.

Takeaway

Constituent power is the authority that creates constitutions but cannot itself be constituted. It names the paradoxical foundation of legal order—a power that must exist outside the law to give law its beginning.

Constitutional authority faces what philosophers call a bootstrapping problem. Consider: a constitution typically gains legitimacy through ratification by some procedure—a popular vote, a convention, legislative approval. But what authorized that procedure? If the ratifying procedure itself requires prior authorization, we face an infinite regress. If it doesn't, we must explain how an unauthorized procedure can confer genuine authority.

The American founding illustrates this paradox vividly. The Constitutional Convention of 1787 was called to amend the Articles of Confederation. Its delegates exceeded their mandate and drafted an entirely new constitution. They then specified a ratification procedure—approval by nine state conventions—that violated the amendment rules of the existing legal order. The Articles required unanimous state consent for amendments. The Constitution simply stipulated different rules for its own adoption.

Was the Constitution's ratification legal? Under the existing legal order, arguably not. Yet it succeeded, and its authority is now unquestioned. This suggests that constituent power operates in a space where ordinary legal categories—legal and illegal, authorized and unauthorized—do not straightforwardly apply. The new order retroactively constitutes its own legitimacy.

Hans Kelsen attempted to solve this problem through his concept of the Grundnorm—a basic norm presupposed by legal science that authorizes the first constitution. But the Grundnorm is a theoretical postulate, not a historical fact or a moral principle. It tells us to assume the constitution is valid if we want to engage in legal reasoning, but it cannot explain why we should make this assumption rather than another.

The deeper lesson may be that constitutional authority cannot be fully grounded in prior authority without remainder. Every constitutional order rests on what Jacques Derrida called a 'mystical foundation of authority'—a moment of instituting violence or founding decision that cannot be justified by the order it creates. This does not make constitutions illegitimate. It means their legitimacy must be continuously enacted and renewed through political practice, not merely inherited from an originary moment.

Takeaway

No constitution can fully authorize its own creation. Every legal order rests on a foundation it cannot legally justify—a gap that must be filled by ongoing political practice and democratic renewal.

If constituent power exists, where does it reside in contemporary constitutional democracies? The classical answer—in 'the people'—raises immediate difficulties. The people is not a pre-political entity waiting to express its will. It is constituted through the very legal and political institutions whose authority is in question. Which people? Acting through what procedures? Represented by whom? These questions have no answers outside constitutional frameworks.

Some constitutions attempt to domesticate constituent power through formal amendment procedures. Article V of the U.S. Constitution, Article 79 of the German Basic Law, and similar provisions specify how the constitution may be changed. But can these procedures accommodate fundamental constitutional transformation? Or do they merely govern ordinary constitutional politics within an unchanged framework?

The distinction between constitutional amendment and constitutional replacement is not always clear. Germany's Basic Law includes eternity clauses protecting federalism, human dignity, and the democratic principle from any amendment. Does this mean these elements stand outside constituent power? Or merely that the constituted amendment power cannot touch them, leaving open the possibility that a genuine exercise of constituent power could supersede even these protections?

Several contemporary democracies have witnessed exercises of something like constituent power outside revolutionary contexts. South Africa's constitutional transition in the 1990s involved a negotiated creation of new constitutional foundations. Iceland's crowdsourced constitutional draft (though ultimately not adopted) represented an attempt at deliberative constituent power. Ireland's Citizens' Assemblies, while not exercising constituent power directly, suggest new institutional forms for popular constitutional deliberation.

The challenge for constitutional theory is to develop an account of constituent power that is neither purely revolutionary—activated only in moments of complete breakdown—nor fully absorbed into ordinary amendment procedures. We need concepts and institutions that allow for fundamental constitutional reflection and transformation while maintaining commitments to legality, deliberation, and peaceful change. This remains an unsolved problem at the heart of constitutional democracy.

Takeaway

Constituent power cannot be eliminated by constitutional design, only channeled. The ongoing challenge is creating legitimate pathways for fundamental constitutional transformation that do not require revolutionary rupture.

Constituent power names something constitutional law needs but cannot fully contain: the authority that precedes and exceeds the constitutional order. Engaging seriously with this concept means accepting that legal authority has limits, that every constitutional settlement is in some sense provisional, and that the deepest questions of political legitimacy cannot be answered by constitutional text alone.

This need not lead to constitutional skepticism or nihilism. Rather, it invites a more honest understanding of what constitutions can and cannot do. They structure ordinary political life effectively. They provide frameworks for resolving disputes and protecting rights. But they cannot permanently settle questions about their own foundations or foreclose future exercises of the power that created them.

For constitutional theorists and practitioners, constituent power serves as a reminder that our work occurs within horizons we did not set and cannot fully control. Democratic self-governance means not only interpreting inherited frameworks but remaining open to the possibility of their fundamental reconstruction. The constituent power that made our constitutions has not disappeared. It has only gone quiet—for now.